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McCallum v Buibui [1975] PGNC 17; [1975] PNGLR 439 (5 December 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 439 - Thomas Arthur McCallum v Gregory Buibui

[1975] PNGLR 439

N16

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THOMAS ARTHUR MCCALLUM

GREGORY BUIBUI

Waigani

Frost CJ

21 November 1975

24 November 1975

5 December 1975

POLICE OFFENCES - Offensive behaviour - Behaviour relied upon of sexual nature - Need for corroboration - What constitutes corroboration - Complaints - Distressed condition - Necessity for magistrate to advert to rule requiring corroboration.

APPEALS - Inferior Courts - Local Courts - Error of law - What constitutes - Offensive behaviour - Corroboration - Failure to advert to rule requiring corroboration.

The rule of practice in a sexual charge that the tribunal of fact should be warned of or take into account the danger or risk of acting upon the uncorroborated evidence of the woman as to the elements of the charge is to be applied in the hearing and determination of offences of a less serious character such as offensive behaviour where the behaviour relied on to constitute the offence is offensive because of its sexual nature.

R. v. Henry; R. v. Manning (1968), 53 Cr. App. R. 160, at p. 163; Kelleher v. The Queen [1974] HCA 48; (1974), 48 A.L.JR. 502, at p. 505; Montgomery v. Counsell; Ex parte Counsell, [1956] Q.S.R. 120; and Reg. v. Trigg [1963] 1 W.L.R. 305 referred to.

Evidence of complaints may enhance the reliability of the prosecutrix’s testimony but it does not constitute corroboration unless it comes from an independent source.

R. v. Evans (1924) 18 Cr. App. R. 123 referred to.

Except in exceptional circumstances, evidence of distressed condition will carry little weight as corroborative evidence.

R. v. Knight [1966] 1 W.L.R. 230 and R. v. Flannery [1969] VicRp 72; [1969] V.R. 586 referred to.

The failure by a judge or magistrate sitting alone to advert properly and clearly to this rule of practice, in a relevant case in the absence of corroboration, will constitute an error of law sufficient to ground an appeal against conviction.

Chiu Nang Hong v. Public Prosecutor [1964] 1 W.L.R. 1279, at pp. 1284-1285 adopted and applied.

Held

Accordingly, an appeal against a conviction on a charge of offensive behaviour, contrary to s. 8 (d) of the Police Offences Act of Papua, where the magistrate acted upon the uncorroborated evidence of the prosecutrix which he found to be true but without making any reference to the rule of practice, should be upheld on the ground that the magistrate had erred in law in so failing to direct himself.

Appeal

This was an appeal against conviction and sentence on a charge of offensive behaviour under s. 8 (d) of the Police Offences Act of Papua. The grounds of appeal were that the magistrate had erred in law in failing to direct himself that it was dangerous to convict on the uncorroborated evidence of the complainant, that the decision was against the evidence and that the punishment imposed was excessive.

Counsel

J A. Griffin and C. W. G. Johnson, for the appellant.

K. B. Egan and B. M. Ryan, for the respondent.

Cur. adv. vult.

5 December 1975

FROST CJ: This is an appeal against the appellant’s conviction by the District Court at Boroko that on 29th April, 1975, the appellant did behave in an offensive manner towards another person, one Waibe-Kumigo, a female, thereby contravening s. 8 (d) of the Police Offences Act of Papua, for which the appellant was fined K20.00. A second information against the appellant that on the same day he did unlawfully lay hold of the complainant was dismissed.

The grounds of the appeal are that the decision was against the evidence and the weight of the evidence and that the punishment imposed was excessive. The point of the latter ground was that the Court should in all the circumstances have exercised its powers under s. 138 (1) of the District Courts Act 1963, and not proceeded to conviction.

At the hearing in this Court leave was granted to add a further ground, that the magistrate erred in law in failing to direct himself that it was dangerous to convict on the uncorroborated evidence of the complainant. This proved to be the main ground of the appeal.

The appellant is the manager of the Sogeri High School and the complainant, whose age the magistrate estimated to be 17 years, was employed at the relevant time at the school as a cleaner. The offensive behaviour alleged against the appellant was that he offered the girl K10.00, suggested sexual intercourse to her by saying, “yu save puspus”, and then placed his hands about her waist. It was not alleged that he interfered with her person or clothing.

The case for the informant commenced with a similar incident which is alleged to have occurred on or about 21st April, 1975. Presumably it was led as similar fact evidence. The complainant said the appellant was present at a clinic at the school whilst she was engaged in cleaning duties. On that occasion the girl gave evidence that the sum offered was K2.00. The appellant said “yu save puspus”, the girl replied, “I don’t know how to do it, I am a small girl”, the appellant said, “I will teach you”, the girl said, “no”, and ran up to the office.

Upon the date of the alleged offence, the girl gave evidence that the appellant told her to get her broom and mop and go up to one of the new unoccupied houses and clean it for a teacher who was to go into residence. The appellant went with her and remained, giving her instructions. Whether his presence was necessary does not appear although he did apparently occupy some part of the time, said to have been about an hour, by doing some maintenance tasks. The door was kept open during the whole time. It is important to note the girl’s evidence that no-one else came to the house whilst they were there. When she finished her work she said the appellant offered her K10.00, she asked, “what is that for”, and he said, “before I gave you K2.00, you did not, so now I give you K10.00”. She said, “no”, and he put his hands on her waist. She said she screamed, but no-one heard her. The appellant put his boots on, which he had removed whilst in the house — he said later in evidence it was because of the muddy conditions — and then, another detail to be noted, the girl said he ran up to the office.

Consistently with the girl’s evidence, on both days she made a complaint about the respective incidents to two men who spoke her language and who were employed at the school as cooks. Both men, who were called as witnesses, deposed to the girl’s condition saying that she was crying, sweating and shivering or shaking. On the second occasion she was taken immediately to the headmaster who arranged for her to be taken to the police. To the informant, a police sergeant, the appellant denied the truth of the girl’s story.

The complainant was subjected to a searching cross-examination, during which she remained unshaken as to the details of the alleged offence, but on matters going to credit she gave contradictory answers. These related mainly to the circumstances in which she had left her previous employment.

At the close of the informant’s case counsel for the appellant submitted that there was no case to answer on the grounds, first, that because of the girl’s unsatisfactory evidence it would be unsafe to convict and, secondly, because of lack of corroboration. The magistrate’s notes indicate that at this stage of the hearing he had in mind the girl’s physical condition as possibly constituting corroboration. However, the submission was rejected without any reasons being recorded.

The defendant gave evidence denying the charge and asserting also as a motive for the girl’s allegations that because of her irregularity of attendance on the day before the offence he had threatened her with dismissal. This was denied by the complainant in cross-examination. He gave evidence that four other teachers had called into the house whilst the girl was working. Also, there was a house directly opposite which was occupied at the time in which any scream could have been heard. He denied that either of the incidents had taken place, and indeed that on the earlier occasion he had gone with the girl to the clinic, which he said was cleaned by the students. The four teachers were called and each gave evidence that they had visited the house whilst the girl was there. One had helped shift a refrigerator, others added details of what had occurred whilst they were present, and one of them deposed that contrary to the girl’s evidence he had walked to the office with the appellant when the latter left the house. None had seen anything untoward between the girl and the appellant. The headmaster also gave evidence confirming that the girl had been brought to his office when she made allegations concerning the appellant, but she was not crying, sweating or shivering. Thus in certain material respects the girl’s evidence was contraverted.

In his final address before the magistrate the appellant’s counsel submitted that it was a case of one person’s word against another, and that the probability supported the appellant’s version, quite apart from the unsatisfactory nature of the girl’s evidence.

After an adjournment of several hours’ duration the magistrate gave judgment in the following terms:

“In spite of the impressive array of defence witnesses in this case I find that there was ample time for events to have occurred in the manner that the complainant has described. What discrepancies there were in her testimony I attribute to what may be described as relative cultural disadvantage. That is to say, a wavering testimony in standard 6 English, which to the complainant is a foreign language is to be expected when confronted by skilled and learned counsel to whom English is the mother tongue.

Taking the girl’s testimony together with details of her early complaint channelled through the standard stages of school and police investigative services, I find that her testimony was unshaken in spite of a brilliant and prolonged cross-examination by Mr. Johnson.

The problem of cases of this nature is that the defendant never knows he has committed an offence until the girl complains afterwards. To cater for minor transgressions between the sexes the law has to allow for a certain amount of horseplay otherwise people would never become acquainted, but the incident involving the K2 should have alerted the defendant to the fact that any further advances of this nature might get him into trouble. I therefore find the offences of which the defendant has been charged proved beyond reasonable doubt.

I convict the defendant on the charge of behaving in an offensive manner, but I dismiss the charge of unlawfully lay hold, having taken its elements into account with the other conviction.

Although I find the defendant’s behaviour to have been offensive at the time, I do not consider the charge to be very serious since no physical harm was done. Propositions of the kind described in this court have to be expected from time to time by young girls like the complainant as part of the natural process of growing up, and the deft refusal of unwelcome suitors in any society is part of a young girl’s social training. What may have complicated the issue in this situation is the working relationship between the defendant and the complainant which would have put her at the time at a considerable disadvantage.”

About four weeks later, after notice of appeal was given, without any request for him to do so the magistrate forwarded to this Court a further report. As full reasons for judgment had been given there was no occasion for the Clerk of the Court to require further reasons, or for the magistrate to submit them — District Courts Act, s. 231 (1). Omitting the passage dealing with punishment, the report is in the following terms:

N2>“1. Further to those reasons which were contained in my judgment delivered at the conclusion of the hearing of this charge in the Boroko District Court, I feel it is necessary for the Appeal Court to know the circumstances existing at the time of that hearing.

N2>2. Looking at the written record of these proceedings alone we have two versions of what is alleged to have happened in that house at Sogeri Senior High School with the Magistrate (myself) faced with the task of deciding which version was true.

N2>3. But the real life situation in the court room at the time was a lot more awe inspiring than that. The defendant with a family, a job and a reputation to protect, was represented by two skilled and articulate counsel, Mr. Johnson and Professor Griffin of the University of Papua New Guinea. Mr. Johnson’s cross-examination of the complainant was brilliant and expert to the extent that I have seen nothing like it in the District Court in years, and an impressive selection of expatriate character witnesses all testified to their disbelief in the truth of the charge.

N2>4. Opposing this well organized defence with its knowledge of court room procedure honed to perfection, was a succession of unsophisticated national witnesses, in the hands of an inexperienced National police constable prosecutor. The complainant, a girl of about 17 years was too timid to give her evidence from the witness box, and we had to seat her next to a court official behind the bar table in order to take her evidence. The social disparity between the parties was fearful; the cultural disadvantage of the complainant — frightening.

N2>5. In this awesome and alien court room atmosphere I am certain that no false testimony could have survived when delivered under such conditions of cultural disparity and such intense cross-examination, and throughout her protracted testimony there was the persistent nagging impression that the girl had no reason to lie.

N2>6. The main tactic of the defence was to attack the girl’s reputation. Repeated references were made about her previous “trouble with men”, which turned out to be a series of similar previous propositions to her to which her response was a series of similar refusals. I therefore consider this tactic to have failed. Even though the appellant’s reputation, marriage, and job may have been jeopardised by this conviction, I find this no reason to rule that the girl’s evidence was false. Because I found the girl’s evidence to have been true and the charge proved, I had no difficulty in proceeding to conviction. I was convinced at the time that the conviction was sound, and I still am.”

From the two documents it will be seen that the magistrate, although by inference he was not prepared to reject the evidence of the teachers, considered that there was a sufficient explanation for the discrepancies in the girl’s evidence to be found “in her relative cultural disadvantage”. In noting his impression that she had no reason to lie, there was no reference to the appellant’s evidence of his dissatisfaction with her work, contraverted as it was. There was no reference to the possibility, which occurs in cases such as this, of the girl telling a false story.

At the hearing application was made on behalf of the respondent to tender a further report by the magistrate pursuant to the amended ground of appeal. Upon this matter I had the assistance of English authority. For a judge to deliver judgment and then after the drawing-up of the order in substance to re-write his judgment so as to put a completely different complexion on the issues in dispute would constitute behaviour on the part of the judge which the Court of Appeal has said it would not be slow to censure. Bromley v. Bromley [dcxl]¹, per Willmer L.J at pp. 668, 669, cited per Prentice J (as he then was) in Paul Papalamnan v. Nuakona [dcxli]². The same consideration must apply to all judicial officers. For the respondent to seek to tender at this late stage of the proceedings a further report dealing with the rule as to acting on the uncorroborated testimony of the complainant would certainly fall within the practice criticized by Willmer L.J

I accordingly refused the application.

The fact is that neither the judgment nor the later report contains any reference to the undoubted rule of practice in a sexual charge, that the tribunal of fact should be warned of or take into account the danger or risk of acting upon the evidence of the woman alone as to the elements of the charge. The reason for the rule is explained by Lord Salmon in R. v. Henry; R. v. Manning [dcxlii]³. His Lordship said that convicting on the evidence of the woman or girl alone “... is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute”. In the case of a sexual charge tried before a jury the jury should be told that “they may act on the word of the woman alone but should exercise considerable caution before doing so, because of the ease with which the charge is made and the difficulty which may attend its rebuttal”. Kelleher v. The Queen [dcxliii]⁴. The rule is to be applied by a magistrate in the hearing and determination of offences of a less serious character, such as the present one, where the behaviour relied on to constitute the offence is offensive because of its sexual nature. Montgomery v. Counsell; Ex parte Counsell [dcxliv]⁵. Under the common law in force in England, which is applicable in Papua New Guinea, the warning is to be given in all cases of sexual offences, even where there is ample evidence corroborating that of the complainant. Reg. v. Trigg [dcxlv]⁶. In Australia, although the rule of practice is applied less rigidly, it is only dispensed with where the corroborative evidence is “indisputable”, “substantial” or “ample”. Kelleher v. The Queen [dcxlvi]⁷, per Mason J at pp. 512-3, and the cases there cited.

Turning to the present case, it could not be contended that the complaints made by the girl constituted corroboration. Although, as Professor Cross says, a complaint “enhances the reliability of the prosecutrix’s testimony” (Evidence, Australian ed. 1970, at p. 250), it does not constitute corroboration because the latter must come from a source independent of the witness. R. v. Evans [dcxlvii]⁸. The only possible corroborative evidence was that of the girl’s distressed physical condition. But except in special circumstances such as existed in R. v. Redpath [dcxlviii]⁹, where an independent bystander saw a young girl in an extremely distressed condition within a few seconds after the time of an alleged attack, evidence of distressed condition carries little weight. R. v. Knight [dcxlix]¹⁰; R. v. Flannery [dcl]¹¹. In the absence of special circumstances, as in the present case, such evidence is regarded as “all part and parcel of the complaint”. R. v. Knight [dcli]¹², per Lord Parker L.CJ, at p. 233. Accordingly, even under the Australian rule of practice, if the magistrate had adverted to the evidence as to the girl’s condition and, as it was open to him, had decided to act on it, he would still have been bound to bear in mind the warning as to the risk of convicting on the girl’s evidence alone.

Now it might be supposed that as the magistrate’s attention had been drawn to this rule of practice, or prudence as it has been termed, by counsel for the appellant, it is to be presumed that the magistrate both appreciated it and took it into account in convicting the appellant, and that his decision therefore cannot be attacked upon this ground. But that is not the view that the Privy Council took in a case which is relevant to this jurisdiction because it was a case of a sexual charge in which the appellant appealed from his conviction by a judge sitting without a jury. Chiu Nang Hong v. Public Prosecutor [dclii]¹³. The charge was rape. The case, which went on appeal from the High Court at Kuala Lumpur in the Federation of Malaysia, is referred to and the relevant passages from the judgment are set out in my judgment in Himson Mulas v. The Queen [dcliii]¹⁴. I there said of the Malaysian decision, “... In his considered reasons for judgment, the learned trial judge, after setting out the conflicting stories, said he believed the complainant’s story that the appellant had had intercourse with her without her consent. Her evidence had the ring of truth, whereas the accused’s story ‘that she had freely consented sounded like a broken cymbal’.” The trial judge’s conclusion was that the complainant was speaking the truth and that in all material circumstances her evidence was corroborated by the facts. Their Lordships however held that there was no corroboration in law implicating the defendant. The appeal was therefore allowed because the case was one in which the appellant had been convicted on the basis that the complainant’s allegation was corroborated when it was not. However, the Privy Council then went on to add the following:

“Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant’s evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships’ view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge’s mind upon the matter should be clearly revealed.”[dcliv]¹⁵

The present case where the magistrate decided to act upon the girl’s evidence which he found to be true, but without making any reference to the need for caution in so doing in the absence of corroboration, falls precisely within the error the Privy Council said should be avoided. It is true that the Privy Council’s statement is obiter dictum but I see no reason why it should not be applied not only to trials before a judge sitting alone but also to a hearing before a magistrate. The rule in my opinion is a sound one, and as I said in Himson Mulas v. The Queen [dclv]¹⁶, its basis seems to be that justice must be seen to be done. As in the present case the magistrate failed to make it clear that he had the risk in question in his mind the conviction cannot stand.

It is thus unnecessary to consider the second ground of appeal, that the conviction was against the weight of the evidence. I would however make several comments. First, any judge in this jurisdiction very well appreciates the difficulty of keeping a handwritten note of the evidence, but an appeal court is handicapped unless on the matters in issue both question and answer are recorded. It is thus not possible fully to appreciate the force of the cross-examination of the complainant as to credit. Next, if there are significant discrepancies in the complainant’s evidence in a case of this kind, before going on to find an innocent explanation for them, a judicial officer would need to be convinced of its truth. Finally, I do not find the findings, in comparative and, I feel, vague terms, of “a relative cultural disadvantage” and “social disparity” helpful in this case. They create the impression that the magistrate saw it as an unequal contest between the complainant and the appellant in which the former needed to be specially protected. No tribunal of fact should be detected in a criminal case from the sole issue, which is whether the charge has been proved beyond reasonable doubt.

For these reasons I would allow the appeal. In all the circumstances I do not consider that I should send the case back for rehearing.

Appeal allowed.

Conviction quashed.

Solicitors for the appellant: McCubbery Train Love & Thomas.

Solicitors for the respondent: L. W. Roberts-Smith, Public Prosecutor.

[dcxl][1964] 3 W.L.R. 666.

[dcxli](Unreported) Judgment No. 771 of 1st Nov., 1973.

[dcxlii] (1968) 53 Cr. App. R. 160, at p. 163.

[dcxliii][1974] HCA 48; (1974) 48 A.L.JR. 502, at p. 505, per Barwick CJ

[dcxliv][1956] Q.S.R. 120.

[dcxlv][1963] 1 W.L.R. 305.

[dcxlvi](1974) 48 A.L.JR. 502.