State v Saganu [1994] PGLawRp 621; [1994] PNGLR 308 (28 July 1994)

PNG Law Reports 1994

[1994] PNGLR 308 - State v John Saganu 

[1994] PNGLR 308

N1261

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN SAGANU

Rabaul

Doherty J

25-26 July 1994

28 July 1994

CRIMINAL LAW - Rape - Unlawful carnal knowledge - 6 1/2-year-old victim - Consent - Corroboration - Recent complaint.

EVIDENCE - Corroboration - Sexual offences - Evidence of a 6 1/2-year-old victim - Common law rule rejected.

Facts

The accused was indicted on two counts of rape and unlawful carnal knowledge of a girl under 12 years of age. The prosecutrix, now age 7, was called to give evidence. She identified the accused as the man who had sexual intercourse with her. Medical evidence showed that there was penetration in her vagina.

Held

N1>1.       The common law rule that very young children should not be called to give evidence does not apply in Papua New Guinea.

N1>2.       The common law rule that young children's evidence requires corroboration does not apply in Papua New Guinea, but the court should warn itself of the dangers of acting only on the evidence of a very young child.

N1>3.       An offence under s 213(1) Criminal Code requires corroborative evidence independent of the prosecutrix; therefore, evidence of recent complaint which emanates from the prosecutrix is not of corroborative value but goes to credibility.

N1>4.       Corroborative evidence required under s 213(4) Criminal Code need not be direct evidence of an eye witness.

Cases Cited

Papua New Guinea cases cited

Beraro v The State [1988-89] PNGLR 562.

Birch v The State [1979] PNGLR 75.

Didei v The State [1990] PNGLR 458.

Schubert v The State [1979] PNGLR 66.

Other cases cited

Campbell v R (1956) 40 Cr App R 95.

Wallwork v R (1958) 42 Cr App R 153.

Counsel

N Miviri, for the State.

J Kaumi, for the accused.

28 July 1994

DOHERTY J:  The accused was indicted on two counts: the rape of and the unlawful carnal knowledge of a girl under the age of 12 years. Both offences carry a maximum sentence of life imprisonment.

The child in question was approximately 6 1/2 years old at the time of the offence. She was approximately seven years old when giving evidence. Courts are conscious of the necessity of children understanding the meaning of truth and are bound by the provisions of s 6 of the Oaths, Affirmations and Statutory Declarations Act. The implications and the steps that need to be taken have recently been reviewed by the Supreme Court in Beraro v The State [1988-89] PNGLR 562. The child was questioned, after which both counsel indicated that there was no objection to her giving evidence. She was then affirmed.

She gave evidence of events that occurred to her, and she named the perpetrator as John Sepik. She identified the person she knew as John Sepik as the accused. She said he was the person that put her on the ground and had intercourse with her, and she "did not like him."

In indictments laid under the provisions of ss 347 and 216 of the Criminal Code, corroboration of evidence is not a statutory requirement, but it is a matter that the court has to bear in mind. Corroboration is required under s 213(4) where a count under s 213 is laid. This is such a case. I bear these requirements in mind when considering the evidence in this case. Further corroboration, which again is not statutory, which the court is bound to bear in mind in a case like this is the question of corroboration of the evidence of a child.

Hence, I approach this evidence with the need to have two aspects of corroboration in my mind. Firstly, the corroboration in sexual offences and, secondly, corroboration of the evidence of a child.

EVIDENCE OF CHILD

I have not been referred to any Papua New Guinea case law on the law on the need to have corroboration of children's evidence. It is not a statutory requirement. Halsbury's Laws (4th edn) states at vol 11(2) para 1144 that it is a rule at common law that the court warn itself about the need for corroboration of children's evidence. The reported Papua New Guinea cases that turn on children's evidence, eg Schubert v State [1979] PNGLR 66 and Birch v State [1979] PNGLR 75, do not deal directly with this aspect of evidence. They stress the need to ensure the child witness understands the meaning of telling the truth and the repercussions on him or her of telling lies.

The English Court of Appeal has dealt with corroboration of children's evidence in Campbell v R (1956) 40 Cr App R 95 and in Wallwork v R (1958) 42 Cr App R 153. These cases are not binding on our courts and depend to some extent on the statutory requirements of the English Children and Young Persons Act 1933, requiring corroboration of the unsworn evidence of a child of tender years before it can be acted upon. The Court in Wallwork v R at p 161 held that, "There must be corroborative evidence if a child of tender years and too young to understand the nature of an oath is called...."

Both these cases deal with the undesirability of acting on only the evidence of a young child. No factual or historical explanation is given for the rule. It may be that the courts consider the children susceptible to suggestion. Mr Kaumi, in cross-examination, put to the child that her father had told her to name the accused, ie that she was open to suggestion - which she denied.

Our courts have stressed they should not adopt the rules of evidence that apply to cultures or cultural conditions and values that differ from Papua New Guinea. I consider that the same caution should be exercised when considering the common law rule regarding corroboration of children's evidence. Clearly, there is no rule admonishing courts not to permit young children being called, as stated in Wallwork v R at p 161, "... in any circumstances to call a little child of the age of five seems to us to be most undesirable...." The child witness in Beraro v The State (supra) was five at the date of trial, four at the date of the incident.

Children are more susceptible to suggestion, have shorter memory recall, and have more vivid imaginations than adults. Care should be taken with their evidence, but if the court, seeing the witness before it, considers and finds he or she is speaking nothing but the truth, then the court is entitled to accept it. The child here was intelligent, in awe of her surroundings, clear and certain in her identification of the accused, but her evidence lacked any great detail of surrounding events. I consider this is a situation where I should look for corroboration of the evidence of a child of tender years.

I see no legal reason why this should be different from, or independent and separate to, the evidence in corroboration required by statute in s 213(4) of the Criminal Code. The question of corroborative evidence in other sexual offences was considered by the Supreme Court in the case of Didei v The State [1990] PNGLR 458 and the case of Birch v The State [1979] PNGLR 75. It held that a Court may act on the uncorroborated evidence of the victim alone if it considers the victim is speaking nothing but the truth, but the Court must warn itself and make it clear it has considered corroboration.

If one looks at the rationale in Didei v The State, it appears that the Supreme Court has adopted a statement, originally of the English court, that allegations of sexual offences can be made easily but are hard to refute. There is no doubt in my mind that the case before me is more than an allegation of sexual assault. Sexual intercourse, or some form of sexual connection, took place.

The medical report shows that there was a vertical tear 3 cm wide and 1/2 cm deep to the child's vagina. The medical conclusion was that there was penetration, but that "sexual intercourse may or may not have occurred." I understand this to mean full sexual intercourse between the person and the girl, leading to ejaculation by the man. The medical officer could not perform an internal examination to ascertain this because it was too painful for the child to be examined inside. The child's father gave evidence of the state he found the child in. I consider the medical findings corroborative of the allegation of sexual connection. I consider the medical findings corroborative of the child's allegation that a male person had sexual intercourse with her.

The accused does not deny that something happened to the girl, but he denies that he did it. I am satisfied that the prosecutrix was capable of identifying the accused. They lived in the same area over a period of many months. He also concedes that he knew of her when he spoke to the police. He said in Tok Pisin, "Em i tokim mi olsem, yu kam bihain na mi go pas", meaning, the girl told him that she would go ahead and he should follow her. At this time, he says, he was building his canoe.

I do not know where he was making the canoe, because he does not say. The girl, in her evidence, made an allegation that the offence occurred on the beach. He said, in an answer to another question to the police, that it was "tru olsem, em tokim mi tasol mi tokim em olsem em i no bikpela". So it is clear that his own story is that, at some point, he was having a conversation with the girl in which she made invitations to him. He alleges that she was making a "pass" at him. I find it quite incredible that a 6 year old could be so persuasive on a 46-year-old man.

In an unsworn statement, he denied in court committing the offence with the girl. He said that she wrongly identified him because the shirt he was wearing in court was not what he was wearing at the time the offence was committed, and that the shirt was borrowed from another CIS inmate. She did not say he was wearing that shirt that day. She used the colour of the shirt to refer to him and to deferentiate between him and the CIS Officer sitting beside him in court.

Through his counsel in cross-examination, he suggested that it was not him but a man who came from the Arawe District. From his unsworn statement in the court, he then mentioned another person, Rean, who he referred to as a relative of the prosecutrix. Rean was never put to the prosecutrix or her father, and he was never mentioned to the police in the record of interview. This brings the accused's credibility into question.

He made an unsworn statement from the dock. The status of the unsworn statement has been discussed several times in this circuit. I will say, briefly, that it is a matter that the Court must consider as a possible version of the fact, but it has to be weighed up in the light of the sworn State evidence. I do consider it and note the difference between the statement in court and the statement that he made to the police.

Counsel, in submission, points out the discrepancies in the dates that this incident was supposed to have occurred. The father refers to seeing his daughter on Saturday, 8 January, and on Sunday, he says, "I woke up from my bed, I found my small girl was not sleeping on her bed. I even thought I was sleeping on top of water when I found out that the bed I was sleeping on was very wet. The beddings was all full of blood." And he then took her to the health clinic, where she had to be hospitalised for four weeks. The medical report shows that she was brought there on 9 January, that is the Sunday. So I do not see any great discrepancy in those dates.

The prosecutrix did not say exactly which day the incident happened, but in answer to a question whether it happened on 8 January, she said, "Yes, in the evening". The father mentions that the first time that he saw something wrong with the girl was on the Saturday. The State agreed there may be inconsistency on dates, but it does not detract from the fundamental fact that this happened to the girl, and that the accused does not suggest he was absent from the place on either the Saturday or the Sunday or the Friday.

The child named the accused to the father as the person responsible for her condition. The status of evidence of recent complaint has been dealt with fully in cases, and I will not repeat all of them here. Suffice to remark that is hearsay, but it goes to the consistency and credit of the prosecutrix and may be of corroborative value.

I consider that the girl's evidence is corroborated by the medical condition in which she was found. I find it corroborated by the inconsistencies and the change of story of the accused. I find the accused was in the area where the offence occurred, with the prosecutrix speaking to him at the time the offence occurred. I find there was recent complaint, and she mentioned the name John Sepik.

The accused is charged on two counts: rape and unlawful carnal knowledge. In the case of rape, there is an element of lack of consent as well as sexual connection that must be proved. The prosecutrix, in her evidence, said that she did not like the accused.

The evidence is equivocal as to when exactly she conveyed that to him - at the time or after. She said, "I did not like him. He did a bad thing. He held me and then he took his clothes off." Consent is an element, even in the case of a child. I cannot be convinced that she knew the real import of what consent consisted of. As has been said by the Supreme Court, young children are taught to obey, they may not resist, and lack of consent must be proved. This is why we have the offence of unlawful carnal knowledge of a girl under 12, which in other countries is called "statutory rape".

If I cannot be convinced as to that element of consent, I must acquit him of the first count.

The offence of unlawful carnal knowledge of a girl under 12 years has no element of consent. Age and the act of carnal knowledge have to be proved. There is absolutely no doubt the child is aged less than 12. Defence, sensibly, did not challenge the evidence that she was 6 1/2 at the time. It was quite obvious from her appearance, and I find accordingly. I have found there was carnal knowledge, for the reasons I have given.

It is a statutory requirement that the accused cannot be convicted on the uncorroborated evidence of one witness (s 213(4)). I consider this differs from the corroboration required by Didei v The State (supra) to prove that carnal knowledge actually occurred. It is evidence corroborative of the accused's guilt and must be independent - it cannot come from one witness alone. Hence, recent complaint - whilst showing credibility - emanates from the witness making the initial allegations.

Since the legislature, when enacting this provisions, was well aware that people do not have carnal knowledge of children before eye witnesses, it must have intended corroborative evidence other than direct eye witnesses' evidence. I consider the place the accused and the prosecutrix both say they were as corroborative. The various conversations the accused attributed to the child about her inviting him, his rejection of her sexual overtures, her alleged exposure of herself put the accused and the child in the same place and time and in a sexual context together. I consider his blaming one person and then another all indicative of his lack of truth and credibility. These points, together with the medical report indicating that the injury was due to penetration by force, are all corroborative of the prosecutrix's story, and I find the accused guilty as charged on the count of unlawful carnal knowledge of a girl under age 12.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.