Jaminan v The State [1983] PGLawRp 515; [1983] PNGLR 318 (29 September 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 318 - John Jaminan v The State 

[1983] PNGLR 318

SC262

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN JAMINAN

V

THE STATE (NO. 2)

Waigani

Pratt Bredmeyer Amet JJ

28 July 1983

29 September 1983

CRIMINAL LAW - Practice and procedure - Witnesses - Hostile witnesses - Means of establishing - Effect of declaration as to - Distinguished from unfavourable witness - Failure to seek declaration - Intimation to court of prior inconsistent statement - Judge not prevented from hearing - No injustice to accused.

CRIMINAL LAW - Evidence - Alibi - Burden of proof - Onus on accused - Not excusatory defence within Criminal Code - Weight.

CRIMINAL LAW - Evidence - Corroboration - Rape - False alibi - May amount to corroboration depending on circumstances.

On an application for leave to appeal against conviction and sentence on a charge of rape:

Held

N1>(1)      A State prosecutor may discredit his own witness without having him declared hostile.

N1>(2)      If the State prosecutor wishes to seek to have his witness declared hostile he must alert the trial judge and prepare the ground by asking a series of appropriate questions of the witness with a view to making a request for leave to cross-examine the witness as a hostile witness: The questions should establish the fact that the witness has made a prior statement concerning the matter, where it was made and when it was made and, if possible, an identification of the witness’s signature on any written statement.

R. v. Fraser and Warren (1956) 40 Cr. App. R. 160 at 161, considered.

N1>(3)      Where a witness is declared hostile the State prosecutor may not only contradict him by other witnesses but may also by leave of the trial judge prove that he has made inconsistent statements.

N1>(4)      Accordingly, where the State prosecutor intimated to the trial judge that a witness had made a prior inconsistent statement but the appropriate steps to have the witness declared hostile were not taken nor was the witness declared hostile the trial judge was not prevented from further hearing the matter where no injustice to the accused was established.

N1>(5)      A defence of alibi is not to be treated as an excusatory defence within Ch. 5 of the Criminal Code Act (Ch. No. 272).

N1>(6)      A defence of alibi can only arise if there is some evidence (as opposed to speculation) in support thereof; as a defence it puts every matter in issue and if the evidence creates a reasonable doubt in the mind of the trial judge the accused should be acquitted.

Wood (1968) 52 Cr. App. R. 74 followed.

N1>(7)      (Per curiam) An alibi given in evidence and found to be false, may, depending on the circumstances, amount to corroboration on a charge of rape.

R. v. Knight [1966] 1 All E.R. 647 discussed.

R. v. Lucas (Ruth) [1981] 1 Q.B. 720 discussed.

N1>(8)      (Per Bredmeyer J) As a matter of fact failure to put the defence of alibi in cross-examination of the State witnesses and a delayed or belated alibi will reduce the weight to be given to the alibi as a defence.

Cases Cited

Chan Kau v. The Queen [1954] UKPC 40; [1955] A.C. 206; [1955] 2 W.L.R. 192; [1955] 1 All E.R. 266.

Eade v. The King [1924] ArgusLawRp 24; (1924) 34 C.L.R. 154; 30 A.L.R. 257; 41 W.N. (N.S.W.) 40; 25 S.R. (N.S.W.) 33.

Hoare [1966] 1 W.L.R. 762; (1966) 50 Cr. App. R. 166; [1966] 2 All E.R. 846.

Karo Gamoga v. The State [1981] P.N.G.L.R. 443.

Kerr v. Motor Vehicles Insurance (P.N.G.) Trust [1979] P.N.G.L.R. 251.

Lewis v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 219.

Paulus Pawa v. The State [1981] P.N.G.L.R. 498.

Perera v. The Queen [1982] VicRp 91; (1982) 6 A. Crim. R. 225.

R. v. Baldwin [1973] 1 Q.B. 774; [1973] 2 All E.R. 624; [1973] 2 W.L.R. 876.

R. v. Boardman [1974] 3 W.L.R. 673; [1974] 2 All E.R. 958.

R. v. Chapman [1973] 2 W.L.R. 876; [1973] 2 All E.R. 624; [1973] 1 Q.B. 774.

R. v. Collings [1976] 2 N.Z.L.R. 104.

R. v. Fraser and Warren (1956) 40 Cr. App. R. 160.

R. v. Guerin [1967] 1 N.S.W.R. 255.

R. v. Johnson [1961] 1 W.L.R. 1478; [1961] 3 All E.R. 969.

R. v. Knight [1966] 1 W.L.R. 230; [1966] 1 All E.R. 647.

Wood (1968) 52 Cr. App. R. 74.

R. v. Lucas (Ruth) [1981] 1 Q.B. 720; [1981] 3 W.L.R. 120; [1981] 2 All E.R. 1008.

R. v. McDougall [1983] 1 Qd. R. 89.

R. v. Tripodi [1961] VicRp 30; [1961] V.R. 186.

R. v. Vallance [1955] NZCA 9; [1955] N.Z.L.R. 811.

Ryan (1964) 50 Cr. App. R. 144.

Sebulon Wat v. Peter Kari [1975] P.N.G.L.R. 325.

State, The v. Manasseh Voeto [1978] P.N.G.L.R. 119.

State, The v. Saka Varimo [1978] P.N.G.L.R. 62.

Tumahole Berena v. The King [1949] A.C. 253.

Uda Liki Gasika v. The State [1983] P.N.G.L.R. 58.

Wood (1968) 52 Cr. App. r. 74.

Appeal

This was an application for leave to appeal against conviction and sentences on charges of rape.

Counsel

B. M. Narokobi, for the appellant.

L. Gavara-Nanu, and E. I. Kariko, for the respondent/State.

Cur. adv. vult.

29 September 1983

PRATT J:  This is an application for leave to appeal against conviction and sentence. The background facts, and the detailed grounds of appeal have been dealt with fully by Amet J with whose reasoning I agree. In the final upshot counsel for the appellant asks this Court to substitute its own inferences and conclusions on a number of factual matters in place of those determined by the trial judge. The principles to be observed by a court of appeal in such circumstances have been adequately covered in a number of cases, more recently, Kerr v. Motor Vehicles Insurance (P.N.G.) Trust [1979] P.N.G.L.R. 251; Lewis v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 219, especially at 233-235, and Karo Gamoga v. The State [1981] P.N.G.L.R. 443.

The appellant argues that the learned trial judge erred in a number of findings, but I am not convinced that his Honour was wrong in those areas dependent on assessment of the quality and credibility of the witnesses nor would I draw inferences contrary to those drawn by the learned trial judge, for most, if not all the facts upon which such inferences were founded, depend directly upon such assessment. The State case was believed and the defence not. In short, at the end of all the evidence the tribunal was satisfied beyond reasonable doubt that rape had been committed by the appellant on all four counts, and I can find nothing either in the evidence or in the reasons of the learned trial judge which would warrant any interference with such verdicts.

A considerable portion of counsel’s submissions on the appeal revolves around three aspects arising from the accused’s defence of alibi. It is of more than ordinary interest in this case to note that the first intimation of such a defence arose only as a result of evidence given by Akai Kup called almost at the end of the prosecution case. Nothing in the cross-examination of the complainant or of the major State witnesses indicated that alibi was the defence. Indeed one might be forgiven for concluding that the defence was going to be one of consent. Even before Mr Kariko for the prosecution made his application to the trial judge, it was clear that the prosecutor was receiving answers from Akai Kup which were far from expectation and consequently would have been quite outside the content of any opening address by the State, (assuming such address had been made). Unfortunately at this juncture of the proceedings things appeared to have got a little out of hand for a short space. In the process the trial judge dissuaded counsel from following a course which he had proposed but for some reason or other no formal application was made by the prosecutor for leave of the court to have this particular witness declared “hostile”, although it was clear enough this was what counsel wished. The transcript, which is undoubtedly a precis of what took place, discloses that after several adjournments the prosecutor “indicated that he had himself taken an oral statement from the witness which was contradictory to the evidence that he was now giving in court”. Therefore he desired to withdraw from the case so that he himself could give evidence about the matter. His Honour ruled that the trial should proceed as the State could not attack the character or credibility of its own witness.

In my view the ruling was plainly wrong, assuming that the statement of Akai Kup was indeed contradictory to that which he had given in evidence. However it was certainly much in the defence’s favour.

Despite the fact that the defence received a ruling in its favour and the witness left the box unscathed and thus attempting to afford a complete alibi for the accused, appellant’s counsel argues that the knowledge gained by the trial judge before making his ruling was such that his whole approach to the alibi would be adversely affected. In my view there was more than ample evidence to justify the trial judge in rejecting the alibi quite apart from this factor. Furthermore there is nothing in his Honour’s judgment to indicate that his assessment of the credibility of the alibi evidence was in any way affected by the intimation from the bar table concerning the evidence of Akai Kup.

The common law position was originally not without considerable difficulty and an attempt was made in 1854 to clarify the situation by legislation. That attempt was re-enacted in the Criminal Procedure Act of 1865. It is this Act which has remained unaltered in the United Kingdom criminal law and forms the basis for our own Evidence Act (Ch. No. 48) ss. 21, 22 and 23 (although special provisions in 1968 affected the civil jurisdiction). Certainly the legislative efforts came in for a considerable amount of criticism, see Cross on Evidence (4th ed.) at 223). One of the main areas of difficulty arose from the difference which was said to exist between a person classified as “an unfavourable witness” on the one hand and a person who should be classified as “hostile”. The “great blunder”, as it is termed by Clayburn CJ was resolved by Williams and Willes JJ cited at 233 of Cross:

“We think the preferable construction is, that in case the witness shall, in the opinion of the judge, prove ‘hostile’, the party producing him may not only contradict him by other witnesses, as he might heretofore have done, and may still do, if the witness is unfavourable, but may also, by leave of the judge, prove that he has made inconsistent statements.”

Whatever the difficulties were in the last century however, the position at present is clear enough:

“If prosecuting counsel has in possession a statement by a witness from the prosecution which is in direct contradiction to the evidence given by that witness, it is his duty at once to show the statement to the judge and to ask leave to cross-examine the witness as a hostile witness”, R. v. Fraser (1956) 40 Cr. App. R. 160 at 161, and summarized in Archbold’s Criminal Pleading, Evidence and Practice (39th ed. 1976 at par. 521).

As we do not have juries the practice in this country has been a little different in that after having established the fact that the witness has made a prior statement concerning the matter, where it was made, and when it was made, and if possible an identification of the signature on a witness’s statement, counsel will then formally intimate to the bench that he has such statement in his possession and wishes to cross-examine the witness upon it as it is contrary to the evidence just given by the witness. Before this stage is reached of course the trial judge will already infer that something has gone radically wrong but he may prefer to ask some questions about the matter before he consents to examining the particular statement. Those enquiries of themselves may reveal that the witness’s memory is simply not as good now as it was at the time when he made the statement or that there may be some genuine ambiguity which has been misunderstood by counsel. If the trial judge however is unable to come to any definite conclusion as a result of his enquiries then of course he must examine the statement before leave can be granted to cross-examine upon it. The situation where a judge must become aware of material that may or may not eventually go to a jury in a jury trial, is quite common in this jurisdiction. A good example of course is those occasions on which it is necessary for a judge to read the content of a confession during a voir dire in order to assist him to come to a conclusion on its admissibility. It had never been seriously suggested before the Supreme Court decision in Uda Liki Gasika v. The State [1983] P.N.G.L.R. 58 that a conviction should be quashed where the trial judge had ruled the confession inadmissible on the basis that the judge must have been or was influenced by the content of the confession. Obviously in the present set of circumstances the matter is not nearly so serious for the statement objected to by counsel for the appellant is not one by the accused but merely by a witness whose evidence may well support the evidence of the accused. In essence the witness said that he and the accused were together from 4.00 p.m. till a time between 9.00 and 10.00 p.m. when they both came to the hotel for the first time since 4.00 p.m. and stayed at the bar drinking until it closed at about 10.00 or 10.30 p.m. whereupon the accused then went to his room. Not unnaturally the defence asked little in cross-examination but somehow or other succeeded in having an earlier written statement by the witness to the police received into evidence. The statement is completely uninformative about what the witness did before “9.00 or 10.00 a.m.” (obviously p.m.) and one would certainly expect that the prosecutor would have obtained some clarification on that important area before he put the witness into the box. I am unable to understand the purpose for which the document was tendered, the basis upon which it was received or how it ever became an exhibit in the trial.

All this leads to the conclusion that it really does not matter in the end result whether the prosecutor makes a formal application that he wishes to have a witness declared “hostile” or whether he makes it in the form in which he did in this case. In my view the appellant’s submissions on this ground are based on a misconception of the law and I consider the ground to be without merit. Before leaving this area however I do acknowledge that there exist certain complications in our jurisdiction where the previous statement is only oral, and the making of such statement is denied. The profession here is fused and there will be many occasions, especially during a circuit away from Port Moresby, when it would not be possible for a prosecutor to have present another person as a witness to the oral statement. Perhaps this case highlights the fact that there may be occasions in which it is prudent for the prosecutor to take down the statement in writing and even better take it down in the language in which it was given if that is possible, and then have the witness acknowledge the statement by putting his mark or signature at the bottom after it was re-read to him. In the present circumstances there would have been no alternative but for the prosecutor to have given the evidence himself. Whether this should be from the witness box or the bar table and whether it should be on oath or not on oath and whether he should continue to act as a prosecutor in the trial are matters that I would not comment upon without the benefit of full and proper argument. As it turns out the actual course taken by the trial judge was certainly not prejudicial to the accused and with the benefit of hindsight, saved a lot of time.

There are two final factors which are relevant to this area. Appellant’s counsel has assumed that the prosecution was in possession of a prior inconsistent oral statement, and asks this Court to make the same assumption, despite the fact that the trial judge never ruled one way or the other. To this day we do not know what it was. It may have been an error on the part of the prosecution. The statement may have been ambiguous or it may have been completely the opposite, we just do not know. The second is that had a ruling been made, be it “hostile witness”, “unfavourable witness”, or simply “forgetful and dull witness”, that would have ended the matter and any submission that a continuation of the trial amounted to a miscarriage of justice whether or not the trial judge was apprised of the content of the earlier statement, is utterly without merit.

I now pass on to the second ground of appeal involving the alibi which was cast in these terms: “That the learned trial judge erred in law in that he required the appellant to prove the defence of alibi clearly open to him on evidence adduced by State witness Akai Kup supported by other State witnesses and confirmed by the appellant and his witness, when as a matter of law it was for the State to negative beyond reasonable doubt that defence.” The ground of course quite improperly incorporates within it an assumption contrary to that found by the trial judge, concerning the credibility of Akai Kup, but it is still nevertheless possible to deal with the two main points raised, namely:

N2>(a)      a requirement that the appellant must prove his defence, and

N2>(b)      an obligation on the State to negative beyond reasonable doubt the defence of alibi. Once again it becomes pertinent to remember that on the evidence as it stands before this Court the first intimation to the prosecution that alibi was involved came when their case was almost completed. The accused had exercised his constitutional rights and refused to make any statement to the police. How it could be seriously said that in such circumstances the State is obliged to negative a matter of which they had been given no notice is beyond me. Indeed not only did they have no notice, but they may well have been lulled into a false position by a quite improper cross-examination of the complainant and the other State witnesses in view of the alibi defence which was ultimately revealed.

During submissions some time was spent on discussing the distinction between “an evidential burden” as opposed to the ultimate “onus of proof” or the ultimate “burden of proof”, but on further reflection I am now of the view that little advantage is to be gained from pursuing such distinction. Likewise I consider it is not only unhelpful but erroneous under the Criminal Code (Ch. No. 262) to suggest as was done in R. v. Johnson [1961] 3 All E.R. 969 at 1479 (E), “It may be that the true view of an alibi is the same as that of self-defence or provocation”. In Papua New Guinea those defences are specifically contained within Ch. 5 of the Criminal Code and by long practice it is for the prosecution “to exclude, beyond reasonable doubt, any of the ‘excusatory defences’ found in Ch. 5 of the Criminal Code and fairly raised by the evidence”: see Sebulon Wat v. Petu Kari [1975] P.N.G.L.R. 325 at 329. Even under the common law if, but only if, the evidence supports the possible existence of one of the “excusatory defences then the Crown must negative such defence”: Chan Kau v. The Queen [1954] UKPC 40; [1955] A.C. 206 at 211. There are certain similarities between alibi and self-defence but no more so than any other matter put forward in defence namely, that before it can be said to fairly arise there must be some evidence in support and not mere speculation. The establishment of such evidence, be it through cross-examination or through evidence-in-chief, has been called in some areas an “evidential burden”. That is not to say, however, that a particular type of defence creates some special type of onus on the prosecution. At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused. Of course an alibi puts every matter in issue whereas self-defence or provocation, mistake or any other of the excusatory defences concedes the presence of the accused and his involvement in a series of events which led to the final state of affairs giving rise to the charge. If one could use the language of the civil courts, the excusatory defences are more like a confession and avoidance whereas the alibi is a complete negation. I would reject any notion that the defence of alibi either as a matter of principle or especially in the particular circumstance of this case, should be classified alongside the other defences set out in Ch. 5 of the Criminal Code.

The second part of this ground of course claims that the learned trial judge had either consciously or sub-consciously, transferred the onus of proof from the prosecution to the defence on the matter of alibi and thus arguably made a similar transfer in relation to the actual charge brought against the accused. In my view he did no such thing.

The particular passage relied upon in support of the appellant’s submission is as follows: “A problem with setting-up an alibi rather than breaking the prosecutrix’s story is that if the alibi is not convincing the defence is left with no answer ....” It is patently obvious from what his Honour stated before as well as after the paragraph objected to that he has rejected the evidence of the State witnesses who attempted to establish the alibi, as well as the defence evidence. For several pages before the particular passage the trial judge has examined in detail the reasons why he rejects the alibi and particularly why he disbelieves the evidence of Akai Kup. I find those reasons particularly compelling. All his Honour is doing in the process of committing his reasoning to paper is to ask the rhetorical question “If the alibi is disbelieved where does that lead the defence particularly where ‘the prosecutrix’s story is highly convincing and supported .. by the other witness’ ”. This is merely another way of saying that the defence of alibi has not created any doubt in the mind of the tribunal, because it has been disbelieved, and thus as it has not damaged the prosecution’s allegations in any way, the alibi has proved of no assistance to the defence. There is no indication whatsoever that any burden has been cast by the judge on the accused. Nevertheless the accused in this trial, having essayed to place a matter before the court and having failed in the attempt had undoubtedly found himself in a position of some difficulty, but such failure does not in any way relieve the prosecution from its final task of proving the matter beyond reasonable doubt. Whether failure by the defence to establish its case can in any way assist the prosecution in overcoming its burden depends very much on the individual circumstances.

That the learned trial judge did not fall into the error of concluding that because he disbelieved the accused therefore the prosecution had proved its case, is brought out clearly at 9 of the judgment, where his Honour says “accepting the prosecutrix’s story of the events of the evening of 2 October 1981, is one thing but finding that the accused is guilty of the crime of rape is another”. Another way of putting this is to say that the complainant was raped on the night in question but was the person charged before the court, the actual perpetrator. The court then proceeded to examine the issues of carnal knowledge, lack of consent, the existence and effect of the complaint and the problem of corroboration. In my view no legitimate criticism can be directed towards his Honour’s comments in these areas.

The third aspect which arises from the alibi and its subsequent rejection by the trial judge, introduces the adequacy or otherwise of the existence of satisfactory corroboration in this trial. In addition to basing one ground of appeal specifically on the question of corroboration, there were a number of further appeal grounds which in the ultimate reduce themselves to a question of whether or not there was sufficient corroboration. There was nothing submitted by counsel for the appellant to cause me any lurking doubts about the ruling of the learned trial judge in this area. I am not quite clear in my mind however whether any reliance was placed by his Honour on the falseness of the alibi. I rather think not. There is certainly ample material contained in the evidence of the State witnesses to corroborate the story of the complainant quite apart from the alibi aspect. But to my mind its very falsity is a compelling additional factor to constitute corroboration. As this particular aspect was not the subject of a specific ruling by the trial judge it is not therefore the subject of a specific ground of appeal. But it was raised by me, it is clearly encompassed by the grounds of appeal, and it is certainly relevant to the outcome of this appeal. I appreciate however that counsel were taken somewhat unawares but that does not entitle the court of appeal to similarly disregard the pertinence of the issue to the verdict appealed. I suggested during argument that a finding by the trial judge that an alibi is false is somewhat analogous to the situation where there is a confession by virtue of false denial made out of court. As was mentioned by Bredmeyer J, however, the situation is not as simple and straightforward as that. In Cross on Evidence (4th ed.), we find the following at 186:

“In R. v. Chapman and R. v. Baldwin the Court of Appeal held that the falsity of the evidence of the accused can never corroborate the evidence given against him ...”

The learned author however goes on to point out that there is a considerable amount of authority which may be thought to go the other way, and that in any case the words of the Court of Appeal just quoted are open to several interpretations. The case of R. v. Tripodi was dealt with by the Full Court of Victoria [1961] VicRp 30; [1961] V.R. 186. At 190 of the report, the court commences to deal with the question of corroboration and its relationship to the giving of false evidence, in the process of which the court refers to the important distinction between the task of isolating evidence which can amount to corroboration and the task of the jury in deciding whether such evidence should in fact be believed. At 191 the court reviews a number of cases where the giving of false evidence has in the circumstances been held to amount to corroboration. All the authorities dealt with by the Appeal Court on that page and the following, including the High Court’s decision in Eade v. The King [1924] ArgusLawRp 24; (1924) 34 C.L.R. 154, undoubtedly support the principle. The court however goes on to say that there are certain difficulties which emerged from Eade’s case and makes an observation, which, in my respectful view, is at the crux of the whole issue, namely that it rests “not so much on the denial itself of the accused as on the conduct which it betokens”. A proper confession is the strongest piece of evidence obtainable. However the conduct of the accused may also be very convincing evidence and such conduct taken in conjunction with a statement which the jury find to be a lie, may properly lead to a conviction; at 193-194:

“The lying statement must of course relate to incriminatory features of the crime; for if it were otherwise any lying statement by the accused might convict him of any crime in the calendar and such a result has only to be stated to be at once rejected. We think that this view may explain why the courts have not discriminated between statements made by the accused out of court and in his evidence in court. In the latter case the jury themselves observe his conduct in giving evidence and if they think he is lying draw their own conclusions as to why he is lying; and, no doubt, the prosecutor, in inviting the jury to reject the accused’s denial, will suggest the reason. It follows from Eade’s Case that ‘it is for the trial judge to decide whether the denials can in the circumstances in law furnish corroboration, and if he considers that they can, to leave it to the jury as a question of fact whether they do’...”.

That lies told out of court and lies told in court may be treated on the same footing was finally enunciated by the Court of Criminal Appeal in Victoria in Steve Donovan Joseph Perera [1982] VicRp 91; (1982) 6 A. Crim. R. 225. A similar problem faced the Court of Appeal in New Zealand when dealing with the question of corroboration in respect of an appeal arising from the conviction for indecent assault. Whilst laying down the general principle the court was careful to point out that each case must depend on its individual facts and particularly upon the nature of the lie and the circumstances in which it was made. Special emphasis is also laid on the fact that the opportunity to commit the crime and to make the lie must be proved independently of the evidence of the person who has to be corroborated. In the present appeal such evidence in my view comes particularly from the girl Maria and the off-duty policeman Samuel Yamu:

“... a proved opportunity may have a sinister complexion put upon it by a statement made by a defendant that is proved to be false, and that such statement may thus amount to corroboration. That principle can operate only if both the opportunity and the falsity of the statement are proved by evidence other than that of the complainant.” (R. v. Vallance [1955] NZCA 9; [1955] N.Z.L.R. 811 at 815.)

The above statement is somewhat similar in content to that made by Lord MacDermott in Tumahole Bereng v. The King [1949] A.C. 253 at 270:

“Corroboration may well be found in the evidence of an accused person; but that is a different matter, for the confirmation comes, if at all, from what is said and not from the falsity of what is said.”

It is clear that the Court of Appeal in England was not happy with its earlier statement in R. v. Chapman [1973] 2 All E.R. 624. In R. v. Boardman [1974] 2 All E.R. 958 at 963, their Lordships make it quite clear that they are cutting down on what might be regarded as a broad application of the statement in Chapman and point out that the statement was correct “on the facts of that case”. A further reservation is enunciated in R. v. Lucas (Ruth) [1981] 1 Q.B. 720. At 724-725 of the report we find that the court has put lies told out of court and lies told in the court on the same footing. If I might be permitted a slight amount of paraphrasing their Lordships state that both may amount to corroboration if: (1) if it is deliberate, (2) if it relates to a material issue, (3) fear of the truth, and a rationalization of guilt must contribute to the motive behind the lie, (4) the statement is shown to be a lie by evidence other than from the source to be corroborated (for example the accomplice or the complainant). A glance at the report reveals that the principle evolved by their Lordships results from the collation of a number of cases and owes a particular debt to Lord MacDermott’s speech in Tumahole Bereng v. The King [1949] A.C. 253 at 270. Lucas’ case also makes reference to another authority which I consider is of some relevance and interest to the matter presently before us, namely, R. v. Knight [1966] 1 All E.R. 647. This case concerned an indecent assault on a young girl and the appellant’s defence was an alibi. He gave no evidence. After dealing with the question of distressed condition and corroboration, Lord Parker CJ on behalf of the Court of Appeal at 233-234 went on to say:

“Though it may be — I say no more — that this Court might have said that there was insufficient corroboration in this case if it had stood alone, it certainly did not stand alone. The other matter of corroboration concerned the approach the jury should make if they were satisfied that the defendant had lied on the very relevant issue as to whether he was in Parliament Street when the father claimed to have seen him there with the little girl ... if the jury believed the father and found that the defendant was telling a lie, it was certainly very cogent evidence capable of amounting to corroboration.”

In my view therefore the statement in Chapman’s case quoted earlier in this judgment does not represent a general principle of law but is rather a statement confined to the particular facts arising on that appeal. A false alibi given in evidence in court, which is subsequently determined untrue, may, depending on circumstances, amount to corroboration. In the present appeal the false alibi certainly does amount to corroboration. However, there is adequate material to corroborate the complainant’s evidence quite apart from the false alibi, and each aspect was referred to by the learned trial judge in various parts of his judgment and summarized at 12 to 13.

In his judgment the learned trial judge found that the complainant was in the room and that “she came out of that room crying later in the evening and the accused being there ...” The distressed state of the complainant, would not, I would think, amount to any corroboration in the circumstances of this particular case. There must be exceptional circumstances before such condition can amount to corroboration (R. v. Knight [1966] 1 All E.R. 647 and R. v. McDougall [1983] 1 Qd. R. 89) although evidence of the condition of the complainant is admissible as direct evidence which goes to show a consistent course of conduct, (and is usually part of the evidence dealing with recent complaint). In the present trial however it seems to me that the learned trial judge was referring more to the evidence of the other witnesses as being corroborative of the girl’s presence in the room rather than that she was crying.

On the application for leave to appeal against sentence I would agree with the reasons of my Brother Amet. In all the circumstances a sentence of four years concurrent on each count of rape was far from one which could be regarded as manifestly excessive even when putting at their highest all those matters mentioned by counsel for the appellant. On the one matter which was left somewhat in the air at the time of hearing the appeal namely, whether or not the appellant’s future in Parliament will be affected, I have formed the view that there is nothing in s. 103 of the Constitution which would prevent the appellant from standing once again for Parliament after he had completed his term of imprisonment. It is not a case therefore where the appellant will be prevented from standing for election once his term of imprisonment is served. Of course the conviction may affect his chances but it is not the role of the courts to engage in speculation.

For these reasons therefore I would refuse the application for leave to appeal in relation to both conviction and sentence, and dismiss the appeal.

BREDMEYER J:  I have had the benefit of reading the judgment about to be delivered by Amet J and agree with it. I desire to say something on two topics.

HOSTILE WITNESS

During the course of the trial the prosecutor sought to have the seventh State witness, Akai Kup, declared hostile on the basis of a prior oral statement which he had obtained from the witness. The prosecutor did not expressly say that he was seeking to have the witness declared hostile but clearly that was what he wanted, and the trial judge wrongly treated the application as one for leave to cross-examine an unfavourable witness. There is a difference between a hostile and an unfavourable witness and what the trial judge said on not allowing a party to cross-examine an unfavourable witness was correct.

The application by the prosecutor was a little premature. He should have first of all told the judge that he proposed to ask the witness a series of questions preparatory to an application that the witness be declared hostile. He should then have asked the witness: Did you speak to me outside the court yesterday? Did you tell me such and such? If the witness had answered yes to those questions counsel could have then pointed out the inconsistency or inconsistencies between what the witness said then and on oath and ask that he be declared hostile. If the judge acceded to that application it would not have been necessary for the prosecutor to seek to withdraw from the case so that he could give evidence of that statement.

Counsel must prepare the ground for an application to declare a witness hostile by questions such as those. In most cases the prior inconsistent statement, say to a policeman, will be written, when the following questions are appropriate. Did you make a statement to the police on this matter on such and such a date? Did the police read it over to you? Did you sign it? Is that your signature? Is that the statement you made? If the witness agrees that the statement and signature are his, the court may look at the statement to decide whether, having regard to the evidence already given, the witness has shown himself to be hostile by departing materially from the statement on important matters. If that statement is denied or unsigned, the policeman who took it may be interposed to prove, by oral evidence, the witness’s signature or what the witness previously said, see Wells, An Introduction to the Law of Evidence (3rd ed.), par. 16.53. Similarly I consider that if the previous inconsistent statement is oral and the witness denies having said it, another witness may be interposed to say that he did say it in order that the witness may be declared hostile.

Mr Narokobi does not object to the trial judge’s ruling, nor can he because it was a ruling against the prosecution and in favour of the defence and the witness gave evidence in favour of the defence. But Mr Narokobi argues that when the prosecutor sought an adjournment to get another prosecutor so that he could give evidence of a prior contradictory statement made by the accused he “in effect impeached the general credit of that witness”. He argued that the prosecutor’s statement to that effect amounted to “a material irregularity” in the trial, and that the trial judge in deciding, as he did, that Akai Kup was not to be believed, was “unduly influenced” by what the prosecutor said. I consider that the prosecutor was entitled to do what he did; he was entitled to tell the judge that he had a prior inconsistent statement and to attempt to have the witness declared hostile. Secondly, there is not one sentence or one word in the judgment where the trial judge in disbelieving Kup, said he was influenced by what the prosecutor said. I believe the argument is really an attack on the integrity and honesty of the judge. It is really saying that despite all the reasons that the judge gave for disbelieving the evidence of Kup, he really had (or he might have had) a secret reason for disbelieving him — based on what he was told by the prosecutor. I believe the argument is completely without merit and untenable. A judge in Papua New Guinea, unlike a jury in other countries, gives detailed reasons for his findings of fact. If he has erred in those reasons the appellant must point to the error or else argue that on the whole of the evidence the verdict should be set aside as unsafe and unsatisfactory. A judge is better able than a jury to dismiss from his mind something said from the bar table or a piece of evidence ruled inadmissible. I trust my fellow judges as men of honesty and integrity to perform their task properly and cannot accede to an argument that a trial judge was influenced by something which was not evidence said by counsel from the bar table.

This is not the first time such an attack has been raised on appeal. It was raised in Paulus Pawa v. The State [1981] P.N.G.L.R. 498 at 502. There the State had opened on the evidence of a certain witness who later proved unavailable. The appeal point was that the judge could not have excluded that opening address from his mind. There was no statement in the trial judge’s reasons that he paid any heed whatsoever to the State opening, and Andrew J on appeal (with whom Kearney Dep. CJ concurred) thought the point trivial. Likewise in Uda Liki Gasika v. The State [1983] P.N.G.L.R. 58 the appellant argued that a trial judge should not read a record of interview on a voire dire because if he later ruled it inadmissible it would be impossible for him to exclude the confession made in it from his mind. Andrew J at 61 of that report dismissed the point for the following reasons which I gladly adopt:

“I do not find that it is an answer to say that the contents of the document should not be read because if it is later ruled inadmissible, it would be prejudicial to the accused as it is impossible for the trial judge to exclude it from his mind. The judge has two distinct functions as the tribunal of law and of fact. In the exercise of one, he should not be hampered by considerations relating to the other. He is entrusted with these functions which he must carry out judicially. If it should be that a confession is ruled inadmissible then on the ultimate question of guilt or innocence he must be entrusted to resolve that question without reference to the document and on the usual test of proof beyond reasonable doubt. It may also be said that the judge’s composition as tribunal of fact does not equate in reality to that of a jury — because of the obvious distinction between a body of lay persons and a judge. This again clearly illustrates that it is artificial to attribute prejudice or an inability to remove a fact from the mind of the tribunal of fact comprised of a judge, by comparison with a jury.”

THE ALIBI

The appellant objected to the following passage from the trial judge:

“A problem with setting up an alibi rather than breaking the prosecutrix’s story is that if the alibi is not convincing the defence is left with no answer. And I find that this is the case here. The prosecutrix’s story is highly convincing and supported or not disputed or broken by the other witnesses.”

The appellant’s counsel argued that the effect of this passage was to reverse the onus of proof, to require the accused to prove his alibi, and, secondly, that in disbelieving the alibi the trial judge found the false alibi to be corroboration of the prosecutrix’s story.

To consider the first argument, the trial judge did not expressly say that the accused had to prove his alibi, but the argument is that that is implied from the words “if the alibi is not convincing ...”. Mr Narokobi stated in his ground of appeal that the prosecution had to negative the alibi raised by the accused and one prosecution witness beyond reasonable doubt and he cited R. v. Johnson [1961] 3 All E.R. 969 in support of that proposition.

I do not consider it particularly helpful to clear legal thinking to say that the prosecution must disprove an alibi raised by evidence beyond reasonable doubt. The prosecution must prove beyond reasonable doubt the guilt of the accused — that he committed the offence of sexual intercourse without the consent of the girl. If the prosecutrix says she was raped at place A at 8.00 p.m. and the accused, and/or witnesses called by him or favourable to him, give evidence that he was at place B at that time and therefore could not have committed the offence, it is incumbent on the prosecution to prove beyond reasonable doubt that he committed the offence at place A. If the evidence of alibi creates a reasonable doubt in the mind of the tribunal of fact, the accused should be acquitted. The State may prove guilt by relying on its witnesses that the accused was at place A outweighing the accused and/or his witnesses that he was at place B; or in addition the prosecution may lead rebutting evidence by a witness who was at place B and who says that the accused was not there at the relevant time. To say that the prosecution has to disprove the alibi once raised is correct if it means that the prosecution has to prove its case beyond reasonable doubt but is incorrect if it implies that it has to call a witness to say that the accused was not at place B at the relevant time.

The onus of proof remains on the prosecution throughout; there is of course no onus on the accused to prove his innocence. But if there is no evidence from the prosecution witnesses in support of the alibi, in practical terms it is incumbent upon the defence to lead some evidence of alibi. One can, I think, speak correctly of an evidentiary onus or burden on the accused. In practical terms in that situation the accused must lead some evidence of alibi and it must be of sufficient weight or sufficiently credible or sufficiently “convincing” — I will allow the word used by the trial judge — to create a reasonable doubt in the mind of the tribunal of fact to gain an acquittal. How strong or credible or convincing that evidence must be, depends on the strength of the prosecution witnesses: if their evidence is very strong then the defence evidence of alibi needs to be reasonably strong to raise a reasonable doubt.

I do not agree with the statement in R. v. Johnson [1961] 3 All E.R. 969 at 970 where the court constituted by Ashworth, Elwes and Veale JJ said “It may be that the true view of alibi is the same as that of self-defence or provocation”. I prefer the later statement of the same Court of Criminal Appeal in Wood (1968) 52 Cr. App. R. 74 which was composed of more senior judges (Parker L.CJ, Edmund Davies L.J and Widgery J). Dealing with the appellant’s argument on alibi, the court said at 78:

“It is said, as I understand it, in the first instance, that it is a rule of law that when an alibi is raised a particular direction should be given to the jury in regard to the burden of proof, and that in every case when an alibi is raised the judge should tell the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi. In the opinion of this Court, there is no such general rule of law. Quite clearly if there is any danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it, then clearly it is the duty of the judge to give a specific direction to the jury in regard to how they should approach the alibi.”

I do not consider that the learned trial judge in the present case in the passage quoted or elsewhere reversed the onus of proof. He simply did not believe the evidence of alibi at all. He found it “full of major discrepancies and patently unbelievable”. And he found the prosecution witnesses “highly convincing and their story supported or not broken by other witnesses”. In other words the evidence of alibi cast no doubt in his mind on a finding of guilt which he concluded from the evidence of the prosecutrix and other witnesses.

I wish to dwell a little on the first sentence of the trial judge in the passage quoted. “A problem with setting up an alibi rather than breaking the prosecutrix’s story is that if the alibi is not convincing the defence is left with no answer.” I think that sentence adumbrates an important truth. A defence counsel can argue in a rape case, as was done before the trial judge and before us, the “defences” of consent and alibi because the prosecution has to prove that the sexual intercourse occurred without the girl’s consent and that it was the accused who had sexual intercourse with the girl. In the same way in a murder trial the defence can argue the defence of provocation (if there is some evidence in support of it) and alibi. R. v. Guerin [1967] 1 N.S.W.R. 255 is an example of that. But when the accused gives evidence he cannot logically give evidence of both matters. He cannot say that the girl consented and also that he did not have sexual intercourse with her. This means that if at the end of the prosecution case, the prosecution evidence on the fact of intercourse and the lack of consent is formidable so that the court is disposed to draw from that evidence an inference unfavourable to the accused, and if the accused does not call any evidence on those issues, the court may consider that its inference is strengthened or confirmed by the accused’s silence — or at least in no ways reduced or countered by evidence from the accused. That was the situation in this case. The trial judge found the prosecutrix and her girlfriend were convincing witnesses, the evidence on the lack of consent was formidable. The accused could have given evidence that he had sex with her with consent or that he was not there. He chose the latter. His evidence was not believed. That choice meant that there was no evidence from the accused on consent to weigh up against the prosecution evidence on lack of consent; in other words no barrier to a finding that the lack of consent had been proved beyond reasonable doubt.

Mr Narokobi argued that the trial judge used the false alibi raised by the accused as corroboration of the prosecutrix’s story. I can find no sentence or passage in the judgment under appeal which supports that argument, so any discussion of the point is academic. As my brother Pratt J points out, we have not had the benefit of full argument on the point, nevertheless, I propose to say a few words. I agree with my brother Pratt J’s review of the cases. Mr Narokobi cited R. v. Chapman [1973] 2 All E.R. 624. That case was criticised by J D. Heydon in an article “Can Lies Corroborate” (1973) 89 L.Q.R. 552 and by Professor Cross in the 4th and 5th editions of his work. Chapman was not followed by the New Zealand Court of Criminal Appeal in R. v. Collings [1976] 2 N.Z.L.R. 104 at 117 and has now been “explained” by the Court of Appeal in R. v. Lucas (Ruth) [1981] 1 Q.B. 721. I agree that Lucas is now the leading English authority on the point. It is a post-Independence decision but I consider it appropriate to the circumstances of this country and should be followed. That case decided the circumstances when a lie told by the defendant either in or out of court can amount to corroboration of an accomplice or a prosecutrix. I add that apart from that situation, a lie can be damaging to the liar’s credit and may lead to the rejection of his evidence or of an explanation given by him in a record of interview.

I turn now to evaluate the alibi evidence. It came from the accused and a prosecution witness, Akai Kup, whom the prosecution unsuccessfully tried to declare hostile. It was that at about 3.30 or 4.00 p.m. the accused and Kup went in Kup’s vehicle to pick up the body of a dead child in the hospital. It took some time to get the body. They then delivered it to relatives at Kelua village about half-an-hour drive along the Baiyer River Road. They stayed “sometime, a long time” in the village, and returned to the hotel at 9.00 or 10.00 p.m. and went straight to the bar. I make four comments about this evidence. It was never put to the prosecution witnesses in cross-examination which reduces its weight; it was a belated alibi not revealed on any earlier occasion which again reduces its weight; it lacks convincing detail compared to the evidence of the prosecution witnesses; and it is contradicted by the second defence witness.

Firstly, the alibi was never put to the key State witnesses particularly the prosecutrix and Maria who gave evidence of being together with the accused in the hotel lounge and in room 2 in the early part of the evening, nor to the prosecutrix that she did not have sex with the accused, that she was mistaken as to the identity of the man who had sex with her, or that she invented the encounter. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] P.N.G.L.R. 62 (Prentice J) and The State v. Manasseh Voeto [1978] P.N.G.L.R. 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused, is reduced. I am not blaming Mr Narokobi specifically for this failure. It is possible that his instructions changed during the course of the trial from consent to alibi. I say that because Mr Narokobi cross-examined the prosecutrix at length on consent not on the question of identity. Later in the trial the defence of alibi was still not revealed by the cross-examination of the prosecution witnesses. The third witness called by the State, Samuel Yamu, an off-duty policeman drinking at the hotel said that the accused and Akai Kup left the hotel at 2.00 p.m. when the bar closed. He was then asked in cross-examination:

N2>“Q.     The next time you saw them was at 7.30 or 8.00 p.m. when they came back?”

What a strange question to ask if the accused had told his counsel that he did not return to the hotel until 9.00 p.m. or 10.00 p.m.; strange because it put the accused at the hotel round about the time the two girls said they met him. The issue of identity or, put another way, the defence of alibi was not raised in cross-examination before the seventh State witness, Akai Kup, gave evidence of it. But speculation is idle. Whatever the cause, the defence of alibi was not raised in cross-examination of the State witnesses and that reduces the weight which should be given to it.

Secondly, the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was “unsafe and unsatisfactory”, it is a factor against the accused.

Thirdly, I believe details convince. The evidence of the prosecutrix and Maria as to the early part of the evening and later of the prosecutrix of the four acts of intercourse in room 2 is convincing in its detail. I summarize their evidence on the earlier part of the evening. They were brought to the hotel by Councillor Nori. They sat down at a table. Nori ordered three plates of food and three glasses of beer. The accused came in and sat opposite. Nori told them his name was John Jaminan and that he was a Member for Sepik. A security man told the girls who were in the gardening clothes that they were not properly dressed and asked them to leave. Their clothes were dirty. Nori and the two girls left carrying their food and drinks to room 2. The councillor said they would have to sleep there, he had booked the room for them, and he would pick them up in the morning. The councillor went out. They poured the drinks down the sink. Councillor Nori returned with the accused and an off-duty policeman who had driven them there. They bought 6 glasses of beer plus some bottles of beer. The accused sat next to Nemba, Nori next to Maria. The councillor and policeman had an argument over Maria, over who was to get her. The policeman left. Nori and the accused went outside. The girls poured the beers they were supposed to drink down the sink. Nori and the accused returned. Nori said he had bought clothes for them to change into. Nori then left with Maria. Nemba anxiously grabbed his hand and said “Where are you going?” He said in place talk “You stay with your husband”. That is the substance of the evidence of Nemba and Maria from the time they met the accused until when Nemba and the accused were left alone in room 2. Note it is a detailed story.

I compare that detailed evidence with that of the accused and Akai Kup on this evening to 9.00 or 10.00 p.m. Brief as it is, I have related their evidence in full above. The story of the prosecution witnesses to my mind convinces because of its detail and has the ring of verisimilitude about it. The defence story is bald and does not convince. It raises questions in my mind — Why would the accused want to spend five or six hours in this way? They were not his relatives, they were probably mourning and sad, why spend such a long time with them when the alternative was to go back to the convivial atmosphere of the hotel where he had been drinking during the lunch hour and the early afternoon.

In the fourth place the alibi story of the accused and Akai Kup was not supported by the second defence witness Caspar Kup Aia. He was an old man related to Akai Kup who was like a son to him. He said he put his car into the workshop in the afternoon for repairs and the workshop proposed to keep it overnight. He was then without transport to go to his village. So in the late afternoon he called on Akai Kup at his office and asked for a lift home. Akai Kup said he could not take him home because he was going to have a drink with a member. The accused was with him and was introduced to the witness. The witness joined them and they all went off to the Hagen Park Hotel where they spent the rest of the evening. The evidence contradicts the alibi because the witness said he met Akai Kup and the accused in the late afternoon and went with them straight to the hotel, at a time when they say they were at Kelua village delivering a body.

The evidence of a State witness, Samuel Yamu, the off-duty policeman, does not help the alibi either. He said that the accused and Akai Kup left the bar and the hotel at 2.00 p.m. He said they later returned in the evening. He was vague as to the time they returned, but his time of the 2.00 p.m. departure contradicts that of the accused that he left the hotel at 3.30 or 4.00 p.m. If Yamu is to be believed that the accused and Kup left at 2.00 p.m. it suggests that they had plenty of time say between 2.00 and 4.00 p.m. to deliver the body (in office hours as it were for Kup) and to be at Kup’s office after 4.00 p.m. to meet Caspar Kup Aia to start their evening’s drinking programme. I note that it was Friday afternoon.

For these reasons, I consider the trial judge was correct in rejecting the alibi evidence.

AMET J:  This is an application for leave to appeal against conviction and sentence. The appellant was convicted on 21 April 1983, in the National Court sitting on circuit in Mount Hagen in the Western Highlands Province, upon four charges that he, on 2 October 1981 in Papua New Guinea, committed rape upon one Nemba Yaga, and was sentenced to four years’ imprisonment with hard labour on each charge concurrently.

He listed some 15 grounds in relation to the appeal against conviction, generally under three major heads and the single ground of being harsh and oppressive in relation to the sentence.

The appellant, John Jaminan, was the sitting Member for Yangoru-Sausia in the National Parliament. On 2 October 1981, he was in Mount Hagen to attend a National Party Convention. He was booked in at the Hagen Park Motel in Room 2.

On 2 October 1981, the prosecutrix Nemba Yaga, a sixteen-year-old community school student from Sitipai village, came into Mount Hagen from the village, with a girl friend Maria Pora.

They arrived in Mount Hagen around mid-day intending to go on to Paisu to visit her father. Early in the afternoon they met Councillor Nori who was described by the prosecutrix as an uncle of hers. Councillor Nori offered to buy the two girls some food, then shortly after he spoke to a man in a blue car and indicated that this man would take the two of them to Paisu. The driver of the car was introduced as a police officer. They all got into the vehicle and were taken to the Hagen Park Motel at about 5 p.m., where Councillor Nori said they could have something to eat. The prosecutrix contended that she did not know where or what this place was as she had not been there before. Councillor Nori then ordered some food and drinks. A little later the appellant came in and was introduced by Councillor Nori to the two girls, as the National Member of Parliament, John Jaminan. The girls and Councillor Nori were then told by motel staff, that they were not dressed properly and so should leave the premises. Councillor Nori and the two girls then left the bar area and went to room 2 of the motel. Councillor Nori told the two girls that this was to be their room for the night, that he had paid for it and that he would be using another room.

The appellant, shortly after, joined the group with the driver of the car the group had come in, to the motel. The driver left later leaving the four of them, the two girls, Councillor Nori and the appellant in the room. Councillor Nori then indicated that he had some clothes for the girl Maria Pora nearby and that he and she should go and get them and that the prosecutrix’s clothes were in the room. Councillor Nori and Maria Pora then left the room, leaving the prosecutrix and the appellant alone in there. The appellant then forced the prosecutrix to get into the new clothes provided. He then turned the lights off, got undressed and forced sexual intercourse upon the prosecutrix by talking hard to her, threatening to hit her and forcing her down with his hands and the weight of his body. The prosecutrix cried and tried to open the door but was unable to. During the evening the appellant forced three more full acts of sexual intercourse upon the prosecutrix; these were done on the floor and each time he used similar force and threats.

The appellant maintained that he was not present in the room at the time but that he was somewhere else. He said he arrived back at the motel quite late at about 9.00 p.m. and went straight to the bar and was drinking until it closed. He was with a Mr Akai Kup. When the bar closed he and Akai Kup went to his room, room 2 and as he opened the door two girls walked out and disappeared and he never saw them again.

The trial judge rejected the appellant’s account and the purported alibi and accepted the prosecution’s case and convicted him as charged.

The counsel for the appellant, Mr Narokobi, challenged almost all of the trial judge’s findings of facts and the inferences and conclusions drawn from those facts, as not being supported by the evidence. Counsel also challenged certain procedural rulings of the trial judge as being irregular and which affected the judge’s findings on vital issues which materially affected his final decision.

The appropriate principles applicable in an appeal in such circumstances have been well established in cases before this Court and referred to by Pratt J whose draft judgment I have had the benefit of reading. The first main ground of appeal is that the conviction was unsafe and unsatisfactory. The appellant’s counsel, Mr Narokobi firstly attacked the credit of the two principal state witnesses, the prosecutrix Nemba Yaga and Maria Pora, as being untruthful witnesses and gave inconsistent testimonies and the trial judge had erred in accepting them as witnesses of truth. Counsel made references to several inconsistencies in their evidence in the trial and their previous statement to the police the very next day after the night of the offence, which had been tendered in the trial. Upon a careful reading of the statements given to the police and their evidence in the trial, I have come to the view that their overall effect is one of consistency rather than inconsistency, so that the inconsistencies referred to fade into insignificance compared to their overall consistency. I am consequently a little puzzled at the purpose for the tendering, by defence counsel, of the two witnesses’ previous statements to the police.

Applying the principles, I am not able to say that the trial judge erred in his assessment of the credibility of the witnesses, whom he was in a superior position to assess. The findings of facts flowing from the assessment of the credibility and truthfulness of the witnesses are similarly difficult to disturb. The appellant has not been able to show why those findings of facts were not open and should be rejected.

I propose to deal very briefly with each submission made under this main ground of appeal, that the conviction was unsatisfactory.

[His Honour considered grounds not calling for report.]

I have had the benefit of reading the draft judgments of the other members of this Court in relation to the defence of alibi and the effect of its rejection as being a lie. They have dealt with the authorities on the subject and I am content to agree with them that given certain circumstances a false alibi or a lie told in or out of court may amount to corroboration. See R. v. Knight [1966] 1 All E.R. 647 and R. v. Lucas (Ruth) [1981] 1 Q.B. 720. If any further corroboration be needed, then I consider that the rejection of the alibi defence of the appellant as being untrue adds consistency to the accounts of Maria Pora and the prosecutrix. Further I consider that the appellant in his own evidence in chief and in cross-examination gave contradictory evidence of his knowledge of the prosecutrix which gave further support for the rejection of the alibi as a lie, and in the circumstances providing corroboration to the prosecutrix’s and Maria Pora’s accounts.

The appellant said that he and Mr Akai Kup went to room 2, opened the door and as they walked in, two girls walked out through the door and out through the gate of the motel and he never saw them again. So that at best, he only had a fleeting, momentary glance of the two girls and the girls did not answer Akai Kup’s query as to what they were doing in the big man’s room.

The appellant then, in the very next breath gives an account of an incident at the Islander Hotel in Port Moresby in August 1982, when he said:

“I was in my room at the Islander Hotel Room No. 24 and Councillor Nori came with a female, who I have recognised to be the one who had accused me of rape on 2 October 1981 in the Hagen Park Motel.”

What a strange revelation. It was the appellant’s own evidence that this occurred at a time when he knew nothing about the allegation of rape against him, nor did he know that the police were looking for him, and indeed it was later the same month of August in Wewak that he was arrested and became aware of the allegation for the very first time. So, it appears strange to me, that he should at once recognize the girl as the one who had accused him of rape and chased her out of the room with those words.

The appellant then attempts to explain that Councillor Nori had brought the girl into his room and later told him, the appellant, that, that was the girl who had accused him of rape. But the appellant said this was later at the pool-side, after he, the appellant, had chased the girl out of his room.

One might be excused for asking the obvious questions: When did the appellant first learn of the allegation of rape against him; how did he know this was the girl who accused him of rape; did he know the prosecutrix better than he would like the court to believe?

It seemed quite clear to me that the appellant knew the prosecutrix better than he was prepared to admit, it suited his alibi defence. He knew about the allegations by the girl against him well before he was arrested by the police, and well before this incident at the Islander Hotel in Port Moresby.

I consider that these further give the lie to the attempt at setting up an alibi and in these circumstances, what is actually said by the appellant amounts to corroboration of the accounts given by Maria Pora and the prosecutrix — R. v. Knight (supra) and R. v. Lucas (Ruth)(supra).

[His Honour considered other grounds not calling for report.]

The second main ground of appeal was that the trial judge erred in law in that he required the appellant to prove the defence of alibi, when as a matter of law it was for the state to negative beyond reasonable doubt that defence.

I agree with the analysis of the law on this subject by the other members of this Court. I wish only to say this, that I do not find the passage from the trial judge’s reasons, which counsel for the appellant attacked as reversing the onus of proof, reverses the onus at all. Nor do I find any remarks anywhere in the trial judge’s reasons which may give the impression that the alibi was rejected for that reason.

There was more than enough evidence, some of which I have referred to, for the trial judge to reject the alibi.

The third main ground of appeal was that the trial judge had erred in allowing the state prosecutor to discredit his own witness without having him declared a hostile witness.

This was the seventh state witness, one Akai Kup. He gave evidence which created an alibi for the appellant. It became obvious that this witness had departed from his proof. The state prosecutor, finding himself in this difficult position, then sought to withdraw from the case so that he could give evidence of having received an oral statement from this witness, inconsistent with his evidence. The trial judge ordered that the prosecutor continue. The appellant contended that the procedure adopted by the state prosecutor was highly irregular, and that this had influenced the trial judge in his ultimate rejection of the alibi defence.

I agree that the procedure adopted by the prosecutor was premature, he had not quite laid the ground work for seeking to have the witness declared hostile. The ultimate effect, however, was the same in that the witness was shown to have given a prior statement to his counsel from which he departed. Taken with the other state evidence, again I find there was more than enough evidence for the trial judge to have rejected the alibi evidence. I have dealt with the rejection of the alibi evidence of the appellant himself and the reasons for its rejection.

I do not find that this procedural irregularity affected the trial judge’s decision to reject the alibi defence put up by the appellant. As I found, there was quite sufficient other evidence to reject the appellant’s own account.

Their Honours, Pratt and Bredmeyer JJ have quite fully discussed the legal position and I am content to agree with them.

I would also refuse the application for leave to appeal against conviction and would dismiss the appeal.

[His Honour then considered the matters raised on the application for leave to appeal against sentence and concluded.]

In all the circumstances, I do not consider that the appellant has shown, even by putting all the matters argued by his counsel at their highest, that the sentence of four years concurrent on each count of rape, is manifestly excessive, or harsh and oppressive on the face of it, or that it is out of all reasonable proportion to the circumstances of the crime.

For these reasons I would also refuse the application for leave to appeal in relation to sentence.

Application for leave to appeal refused, and appeal dismissed.

Lawyer for the appellant: B. M. Narokobi.

Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.