Andrew Tovue, The State v [1981] PGNC 59; [1981] PNGLR 8 (5 March 1981)

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CRIMINAL LAW - Evidence - Credibility - Corroboration - Sexual offence - Corroboration not required by law - Danger of convicting on uncorroborated evidence to be adverted to in reasons for judgment - Failure to advert to danger ground for setting aside conviction.

CRIMINAL LAW - Particular offences - Unlawful and indecent assault - “Indecency” - Measure of - Standards of modesty of ordinary citizens of area at time of offence - Criminal Code s. 360.[iv]1

CRIMINAL LAW - Particular offences - Unlawful and indecent assault - Corroboration - Danger of convicting on uncorroborated evidence of complainant - Criminal Code s. 360[v]2.

WORDS AND PHRASES - “Indecency” - Unlawful and indecent assault - Standards for - Criminal Code s. 360.[vi]3

In criminal proceedings for a sexual offence, although corroboration may not be required by law, an accused should not be convicted on the testimony of a complainant woman, unless her testimony is corroborated by independent evidence implicating the accused.

Failure to advert to the danger of convicting upon uncorroborated evidence by the trial judge both at the trial and in the reasons for judgment, should result in any conviction being set aside.

On a charge of unlawfully and indecently assaulting a woman under s. 360 of the Criminal Code, “indecency” is to be measured by the standards of modesty of the ordinary citizen of the area, at the time the unlawful act occured, bearing in mind that standards of decency vary from place to place and from time to time.

The State v. Aubafo Feama and Ors. [1978] P.N.G.L.R. 301, at pp. 3606-312, not followed.

This was the trial of an accused on three charges of unlawfully and indecently assaulting a woman.

KEARNEY DCJ: Andrew Tovue is standing his trial on three charges of unlawfully and indecently assaulting a woman, P.

The State alleges that he had sexual intercourse with the woman on 7th, 8th and 9th April, 1980, and that, in the particular circumstances, these acts of sexual intercourse constituted unlawful and indecent assaults upon the woman, under the Criminal Code, s. 360.

“A person who ... touches ... the person of another ... without his consent, or with his consent if the consent is obtained by fraud ... is said to assault that other person, and the act is called an assault.”

“An assault is unlawful and constitutes an offence unless it is authorized or justified or excused by law.”

The State alleges that while P consented to the acts of sexual intercourse in question, the accused had obtained her consent by fraud. The fraud was said to lie in certain representations made to the woman P and her husband by the accused, to the effect that he (the accused) was a traditional “medicine man” and could cause pregnant women to give birth more quickly than they otherwise would. P was, at that time, seven months pregnant.

[His Honour then reviewed at length the evidence adduced by the State and continued:]

At the end of the State case, I rejected a “no case” submission by Mr. Maraleu. The accused then exercised his right under s. 37(10) of the Constitution of the Independent State of Papua New Guinea not to testify; no evidence was called by the defence.

Mr. Maraleu submitted that the evidence adduced by the State was not sufficient to prove every element of the offences charged beyond reasonable doubt. I understood him also to submit that the evidence of the woman P as to the acts of sexual intercourse must be corroborated, as a matter of law.

As to the second submission, I think it is clear that corroboration is not required by law, but in practice persons are not usually convicted on the testimony of a complainant woman in criminal proceedings for a sexual offence, unless her testimony is corroborated by independent evidence implicating the accused. The reason is that practical experience shows that allegations of sexual misbehaviour are easy to make, and difficult to refute. Nevertheless, an accused may be convicted upon the uncorroborated evidence of the complainant, provided the court is satisfied it is true. In cases where such corroboration is lacking, it is necessary that the trial judge or magistrate makes it quite clear—as I now do—that the danger of convicting upon such uncorroborated evidence, is very much to the fore of his mind. This is the rule laid down by the Privy Council in Chiu Nang Hong v. Public Prosecutor [vii]⁴, and applied in McCallum v. Buibui [viii]⁵. In Townsend v. Oika [ix]⁶, where the above cases were not cited, I put this last point at the level of a rule of prudence; in doing so, I consider that I was in error, and not only should the risk be borne in mind, and mentioned in the reasons for decision, but failure to do so will result in the conviction being set aside, on appeal.

N1>As I mentioned earlier, I consider that all of the State witnesses were truthful. I do not consider that there is any evidence which can fairly be said to amount to independent evidence implicating the accused in a material particular, so far as the charges are concerned, and corroborating the vital testimony of P. I bear in mind the risk of acting upon her evidence alone, and the need to be very cautious in that respect; but I am satisfied beyond any doubt that P was truthful and accurate in the evidence which she gave. It cannot be said, to my mind, that this was some kind of fantasy or mistake on her part. The fact that she did not complain at an earlier time to her husband is entirely consistent with the beliefs which I find the accused had induced in her, particularly the belief that her baby would die if she informed anyone.

N1>It is clear, to my mind, that the accused worked a trick upon these unsophisticated people and convinced them that he was what he was pretending to be, a traditional medicine man with the ability to make pregnant women give birth more quickly.

N1>It is clear that his course of “treatment” included the acts of sexual intercourse which P had described; I make that finding on her uncorroborated evidence, being satisfied beyond reasonable doubt that she is to be believed, while bearing in mind the danger of acting on her evidence.

It is clear that P would not have consented to the acts of sexual intercourse with the accused, had she not been led by him to believe at the time that these acts were part of his traditional medicine, designed to enable her to give birth more quickly.

In those circumstances, P’s consent was obtained by the fraud of the accused, and his penetration of her body in the acts of sexual intercourse amounted to assaults upon her, in terms of s. 248 of the Code.

There is no suggestion that these assaults were authorized or justified or excused by law. The “law” is as specified in s. 9 of the Constitution and custom is part of the underlying law, subject to the Constitution, Sch. 2.1.(2) and (3). No material relating to methods of gynaecological or obstetric treatment by traditional medicine men in East New Britain has been put before me; in particular there is nothing to suggest that sexual intercourse with a pregnant patient forms any part of such treatment. No argument was directed to any of the matters referred to in s. 7 of the Native Customs (Recognition) Act 1963. Custom not being relied upon by the accused, it is unnecessary to consider whether it may provide authority or justification or excuse for what was done.

What amounts to “indecency” depends I think, upon the standards of modesty of the ordinary citizen of the area, at the time the act occurred. Standards of decency vary from place to place, and from time to time; see the discussion by Prentice J. (as he then was) in R. v. Noboi-Bosai[x]⁷, and by Wilson J. in The State v. Aubafo Feama and Ors.[xi]⁸. I respectfully agree with the view expressed by Prentice J.[xii]⁹ that there is no uniform blanket standard of decency yet applicable throughout the country, though that view was expressed nine years ago; and respectfully disagree with the contrary view expressed by Wilson J.[xiii]¹⁰. Clearly, what is indecent at one time and place or under one set of circumstances may not be indecent at another time and place or in different circumstances. These offences were committed at Rabaul in 1980. I have no doubt that, applying the standards of modesty of the ordinary citizens of Rabaul in 1980, the assaults established by the evidence in this case were indecent in their nature. Further than that, it is unnecessary to go.

Accordingly, I find the accused guilty as charged upon each of the three counts of unlawful and indecent assault.

[iv]<Section 360 of the Criminal Code provides:

“Any who unlawfully and indecently assaults a woman or girl is guilty of the misdemeanour, and is liable to imprisonment with hard labour for two years.”

[v]Section 360 of the Criminal Code provides:

“Any who unlawfully and indecently assaults a woman or girl is guilty of the misdemeanour, and is liable to imprisonment with hard labour for two years.”

[vi]Section 360 of the Criminal Code provides:

“Any who unlawfully and indecently assaults a woman or girl is guilty of the misdemeanour, and is liable to imprisonment with hard labour for two years.”

[viii][1975] P.N.G.L.R. 439.

[ix]Unreported National Court Judgment L231, 8th July, 1980; see on appeal [1981] P.N.G.L.R. 12.

[x][1971-72] P.N.G.L.R. 271 at pp. 281-4.

[xi][1978] P.N.G.L.R. 301 at pp. 306-312.

[xii][1971-72] P.N.G.L.R. at p. 283.

[xiii][1978] P.N.G.L.R. at p. 308.

National Court of Papua New Guinea

Andrew Tovue, The State v [1981] PGNC 59; [1981] PNGLR 8 (5 March 1981)

Papua New Guinea Law Reports - 1981