State v Toapala [1993] PGNC 10; N1191 (2 December 1993)

Unreported National Court Decisions

N1191

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 351 OF 1993
THE STATE
v
PAUL PAKITS TOAPALA>

Buka

Jalina J
30 November 1993
1-2 December 1993

CRIMINAL LAW - Evidence - Incest - Offences of sexual nature - Corroboration - Recent Complaint - Complaint prompted by a relative four years later - Not sufficient recent complaint in the circumstances.

CRIMINAL LAW - Evidence - Incest - offences of sexual nature - Corroboration - Repetition by victim to more than one relative of accused's conduct towards her - Need for independent testimony of victim’s conduct - Repetition by victim to more than one person of accused's conduct not independent testimony - Victim cannot corroborate herself.

Cases Cited:

The following cases are cited in the judgment:

The State v Andrew ToVue [1981] PNGLR 8

Peter Townsend v George Oika [1981] PNGLR 13

R v Finch and Karo Nain [1959] No 146

R v Whitehead [1929] IKB 99

TRIAL

This was a trial for one count of attempted incest and one count of unlawful and indecent dealing with a girl under the age of 16 years.

Counsel:

NT Sios for the State

E Massatt for the Accused

2 December 1993

JALINA J: This accused stands trial on one count of attempting to have carnal knowledge of one Bicilla Pakits who was his daughter as he well knew between 1st January 1989 and 30th June 1993 on dates unknown at Buka. He also stands trial on a second and alternative court of unlawfully and indecently dealing with his daughter who was under 16 years of age during the same period.

The State alleges that on dates unknown between 1st January 1989 and 30th June 1993 the accused continuously tried to have sexual intercourse with the victim who was the eldest daughter from his third wife. The State also alleges that the accused between 1st January 1989 and 30th June 1993 unlawfully and indecently dealt with his daughter in that he continuously touched and fondled his daughter's breasts and vaginal area. She was under 16 years of age at the time.

The accused has denied both charges. In fact in his Record of Interview he denied having any knowledge of the matters alleged against him by the victim.

The victim has given sworn evidence in which she basically confirmed what the State has alleged. She said that the affair between her father and herself started in 1989 when she was in Grade 2 at Lemankoa Community School. Taking judicial notice of the fact that school age for Community Schools in Papua New Guinea is 8 years, she was 9 years old in Grade 2 when the accused started to commit the alleged offence against her. She said that except for 1992 and 1993 when the accused only fondled her breasts and her vagina, from 1989 to 1991 the accused would tell her to remove her clothes and remove his clothes and tell her to sit on his penis and when he could not penetrate her he would rub his penis outside her vaginal area. This happened inside their house. Sometimes the accused would do this during the day and sometimes at night. She said that her father did these things to her during the day when she returned from school and her mother was away and at night when her mother was outside the house. The matter did not come to light until about the middle of June this year when she told her cousin brother Dennis Sawala when she became upset after her father, the accused, beat her up. From the victim’s evidence it appears that there was no penetration of her vagina by the accused’s penis.

When questioned by the Court towards the end of her evidence in chief she said that from 1989 up to June 1993 she did not tell anyone because her father threatened her not to tell anyone. On cross-examination she agreed that she was closer to her mother than her father and that there were female relatives living near them but she did not tell them and on re-examination she said that the reason for this was that she was ashamed.

The witness Dennis Sawala is a cousin brother to the victim. He said that in March this year when he went to the accused’s house he saw the accused hold the victim’s breast but he did not tell anyone about it because he was not upset by it. In about 15th June this year the victim told him about the sexual relationship between her and her father (the accused) and he told her that he would not do anything but he would keep a look-out as he wanted to see for himself.

On cross-examination, Dennis Sawala said that when he saw the accused fondling the victim’s breast it was at a distance of about 6-8 metres from him. He did not call out to the accused and the victim when he saw this nor did he tell anyone. On re-examination he said that the reason he did not call out was that he did not feel bad about it because he used to see the accused touch the victim’s breast and swear at his children.

On or about 21st June Dennis Sawala told Rose Hamalu about the victim's relationship with her father and requested Rose Hamalu to interview the victim about it. Rosemary is a cousin to the victim by reason of their respective mothers being real sisters. Rose Hamalu is also a cousin to Dennis Sawala. Rose Hamalu asked the victim to tell her what her father used to do to her and as the victim was telling her she wrote down on a piece of paper what the victim said. The contents of what she told Rose Hamalu has been tendered in evidence without objection. From the notes taken by Rose it appears that when the victim was in Grade 2 in 1989 the accused used to make her sleep on his private parts.

When the victim was in Grade 3 the accused actually had sexual intercourse with her when her mother was in the bush.

One night when the victim was in Grade 4 the accused slept on top of her when her mother was outside and she told the accused that she would run out of breath.

Starting from the time the victim was in Grade 5 to the time she was in grade 6 the accused used to fondle her breasts and her private parts. Sometimes he would hold her private parts when he finds her sleeping with her private parts exposed.

When her father has sexual intercourse with her he used to threaten her with assault if she told her mother. He also used to threaten her with death at the hands of her brothers.

Rose Hamalu also said that after the victim told her of the above, she took the victim to the Lemankoa hospital for medical examination. This was done but the nurse told her and also stated in the report that because of the length of time the incident took place it was difficult to determine if sexual intercourse took place or not. Rose Hamalu gave the nurse's report to the policewoman at Hutjena Police Station.

The victim was later taken to the Sohano Health Centre by Senior Constable Carolyn Pio for further medical examination. This was done by Dr Sevou on 12th July 1993. From his report it appears that the victim denied vaginal penetration each time she sat on the accused penis between her thighs around the vaginal entrance. As there was no evidence of scarring on the vagina no penile penetration had taken place. But Dr Sevou also found upon examination of the victim’s vagina that it was fully developed and that the hymen was not present.

The victim has told Rose Hamalu that on some occasions the accused had actually had sexual intercourse with her, thus indicating that there had in fact been penetration. Both to Dr Sevou and to this Court she said that the accused did not actually penetrate her. She said during cross-examination by Mr Massat that she had not had any boyfriend from 1989 until now. Yet Dr Sevou found that the hymen was not present. If her father did not penetrate her vagina and she had not had any boyfriend to date, how was the hymen broken?

Both offences are offences of a sexual nature. The rule of practice at common law is that 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. This appears in the headnote in The State v Andrew ToVue [1981] PNGLR 8. This rule of practice was held by the Supreme Court as appropriate to the circumstances of Papua New Guinea in Peter Townsend v George Oika [1981] PNGLR 13. It was said in R v Finch and Karo Nain [1959] No 146 that “charges of a sexual nature are notoriously easy to make and difficult to refute. There is a salutary rule of practice that it is dangerous to convict on uncorroborated testimony in such cases. ‘Uncorroborated testimony is defined in s. 1 of the Criminal Code Act’ in relation to an accused person” to mean “testimony that is not corroborated in some material particular by other evidence implicating him”.

Mr Sios for the State has submitted that I should convict the accused on the first count and failing that I should convict him on the alternative count. He submitted that there was sufficient evidence of the accused attempting to have carnal knowledge of his daughter both from the victim’s evidence and the evidence of Rose Hamalu who had the first opportunity of interviewing the victim after she heard from her cousin Dennis Sawala. He further submitted that I should believe the victim whose evidence is corroborated by her own evidence and the doctor’s evidence that the hymen was missing. The victim had failed to tell anyone because the accused had threatened her and that she had become ashamed. Mr Sios further submitted that the accused’s failure to testify has left the victim's evidence unchallenged.

Mr Massat for the accused has submitted that since there is lack of recent complaint which is essential to sustain a conviction in a sexual offence which the charges before me are, I should acquit the accused on both charges. He effectively submitted that with the medical report of Dr Sevou being unclear due to this conflicting opinions on penetration and the complaint being made by the victim to Dennis Sawala and Rose Hamalu a long time after the incident first took place, I should acquit the accused on both counts.

I have considered the submission in light of the evidence and find that the victim’s evidence has not been corroborated by independent evidence implicating the accused. There is no recent complaint. The recital of a victim in a sexual offence of what an accused man may have done to the victim and such recital having been made at the instigation of a relative as has happened here is no corroboration by independent evidence. To complain in 1993 of sexual acts which took place as far back as 1989 is obviously not a recent complaint. It is just too far fletched in time to be a fresh or recent complaint. In this case what the witnesses Rose Hamalu and Dennis Sawala have told the court were basically what the victim told each one of them. In R v Whitehead [1929] IKB 99 where the accused was charged with having unlawful carnal knowledge of a girl under the age of sixteen years, it was suggested that the girl’s evidence might have been corroborated by the fact that she told her mother about it afterwards, Lord Hewart said at p102:

“In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story 25 times in order to get 25 corroborations of it.”

I do not accept the victim’s evidence that she did not tell anyone because she was scared and also ashamed. She was not alone with the accused. Her mother was there and there were also female relatives including Rose Hamalu. What the accused was doing to her was very serious. He was doing to her his real daughter and this has been going on since 1989. I cannot accept that because she was scared and ashamed she allowed this very serious crime to be continuously committed on her by the accused.

There is evidence from her through Rose Hamalu that the accused had actually penetrated her vagina. She denied this to Dr Sevou and as well as in this court. Yet Dr Sevou found that the hymen was not present. If the accused did not penetrate her and she had not had any boyfriend to date then who broke the hymen?

It is also surprising and unbelievable that the accused only told her to sit on his penis and did not penetrate her vagina from 1989 to 1991 when she did not have any breasts and yet in 1992 and 1993 when she had breasts, he only fondled her breasts and private parts but did not attempt to have sexual intercourse with her. Human nature would have demanded him to have been more interested in actual penetration when she had breasts and her vagina was well developed than he would have done from 1989 to 1991.

I also cannot accept Mr Sios’ submission that because the victim’s evidence remains unchallenged by the accused’s failure to testify that the accused should be convicted. As counsel is no doubt aware, the onus is not on the accused to prove his innocence but it is on the prosecution to prove his guilt beyond reasonable doubt. Section 37 (4) (a) of the Constitution provides for the accused to be presumed innocent until proven guilty according to law. According to law in my view means according to laws, regulations, rules and legally accepted practices. A legally accepted rule of practice is the requirement for corroboration and recent complaint. At the close of the State’s case the State has not discharged the required evidentiary standard which is the requirement for corroborative evidence implicating the accused to be from an independent source and not at the instigation of a relative such as Rose Hamalu of what she had earlier told Dennis Sawala. She cannot corroborate herself by repeating the same story to another person.

On the whole of the evidence I am not satisfied beyond reasonable doubt of the guilt of the accused and as such I find him not guilty on both counts. I order that his bail money be refunded to him.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor