State v Paulo [1993] PGNC 126; [1994] PNGLR 335; N1248 (28 August 1993)

N1248

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

BIKHET NGURARES PAULO

Rabaul
Doherty J

26-28 August 1993

CRIMINAL LAW - Evidence - Corroboration in sexual offences reviewed.

Facts

The accused was indicted on one count of incest with his daughter. He elected to exercise his constitutional right of remaining silent and called no witnesses. He objected, successfully, to his wife giving evidence for the prosecution and to the admission of the record of interview. He alleged that the allegations made against him were fabricated. However, he provided no evidence to support his allegation of fabrication. His counsel argued that the evidence of the victim was not corroborated and, therefore, the Court must acquit.

Held

1. The accused was guilty as charged, as he adduced no evidence to rebut the evidence of the State and cause a doubt in the mind of the Court.

2. There is no statutory requirement for corroboration in incest or in other offences of a sexual nature. However, the common law rules of corroboration in sexual offences have been adopted and extended in Papua New Guinea.

3. The prosecutrix was truthful in her evidence, which was corroborated, and the allegation of fabrication cannot be sustained.

Cases Cited

Papua New Guinea cases cited

Birch v The State [1979] PNGLR 75.
Didei v State [1990] PNGLR 458.
McCallum v Buibui [1975] PNGLR 439.
Pawa v The State [1981] PNGLR 498.
R v Barker (1956) No 96.
R v Finch (1959) No 146.
State v Fineko [1978] PNGLR 262.

Other cases cited

R v Campbell (1956) 40 Cr App R 95; [1956] 2 QB 432; [1956] 3 WLR 219; [1956] 2 All ER 272.
R v Henry (1968) 53 Cr App R 150.

Counsel

A Raymond, for the State.
T Tamusio, for the defendant.

28 August 1993

DOHERTY J: The defendant was indicted and pleaded not guilty to one count of incest with his daughter on 18 June 1992. There is no dispute that the prosecutrix is the daughter of the defendant. The defendant elected to remain silent, as is his right. He called no witnesses and objected, pursuant to s 13 Evidence Act, to his wife giving evidence for the prosecution. He objected to the admission of the record of interview on grounds of breach of his constitutional rights. That objection was upheld. He cross-examined witnesses at length to the effect that the allegations were fabricated, but he led no evidence to support the allegation of fabrication, or why such allegations would be made against him.

The defence counsel submits that the evidence of the prosecutrix is not corroborated and, therefore, the Court must acquit. He does not refer me to any statute or case law on this point.

The daughter looks young. Her age was not given in evidence. I would estimate it to be 15 years . She did not speak pidgin and comes from a remote area of the province, requiring a journey first to the coast, and then some hours by open boat to Rabaul.

She told the Court she lived with her parents at the time of the offence. She had been sent by the defendant to fetch water in a bamboo container on 18 June 1992. She did not return quickly enough. The defendant met her "half way", beat her, told her he would have sex with her, then did have sexual intercourse with her. There was blood on her laplap. She felt pain. The defendant threatened that if she told anyone he would assault her. She went home and told her mother, who reported it to "the Councillors, who tried to solve that matter". She later ran away to a house in the gardens where two male cousins or uncles were staying. She was afraid of the accused. It appears from evidence she ran away some days after.

From other evidence, it is apparent that a meeting of Councillors intended to resolve the matter became acrimonious. Whether that was the cause of her running off is unclear. In any event, she ran off into the bush because she was scared of her father, and then stayed at the house in the garden. Whilst she was staying there, she said the defendant came in the early hours of the morning. The accused took her away from the house and up to the road. There, she said, "He threatened me with the knife and he did the bad thing again with me." The "bad thing" was explained in examination as sexual intercourse. It was put in her own language in cross-examination and it was made clear in her answers to mean sexual intercourse. If I had any doubts about the meaning, they would have been clarified by an outburst by the accused, who said, "That girl is saying I raped her, but the relatives told her to tell this story."

She reported the second incident to the mother, who took her to the police the next day. That was about 1 August. The girl was not definite on the date, as she lives in a remote area and has had no opportunity of an education. I put no weight on the dates.

An objection to the mother giving evidence was upheld under the Evidence Act.

It was put in cross-examination, and agreed, that the prosecutrix had been staying with an older relative, Elias Kelanum, and the two cousins up to Elias' death. No explanation was given why she stayed there and not with her parents, but such arrangements are not uncommon. After Elias' death, her natural parents took her home, and she stayed with them. It was put to the prosecutrix that these relatives made up the story of the incest. This she denied.

The two cousins were called and gave evidence.

Mutu gave evidence of the accused coming in the night and taking the girl. The accused was angry. It was put to the two cousins that the story was made up. Mutu looked puzzled and confused by the question and answered several times that the accused wanted his daughter back. He appeared to consider that was all there was to say on the subject. Lotu Labot gave similar evidence. It was not put to him that the incest was a fabrication by family members.

It is apparent from the evidence that the Councillors did have a hand in the matters after the first incident and "solved it". The complaint was reported to the Councillors after that first incident; the accused came in the night, as the prosecutrix described, and took her away from her cousins; he was angry; the complaint became known in the village through the mother; and the accused had beaten the girl.

The defendant elected to give no evidence. The effects of the defendant's decision have been discussed fully in Pawa v The State [1981] PNGLR 498 at 504, as follows:

"1. The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify.

2. Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

3. Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case;

4. The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a) whether the truth is not easily ascertainable by the Crown but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) whether the accused has before trial given an explanation which the Crown has adduced in evidence."

The evidence of the prosecutrix has been quite unshaken in cross-examination. She was young, nervous, unhappy looking, embarrassed; but she was quite clear about events and unshaken. She had come a long distance to court to give her evidence.

The defendant has adduced no evidence to refute the allegations. Counsel for the defence says the evidence is uncorroborated.

There are some statutory provisions requiring corroboration in sexual offences. These are s 213 Criminal Code (unlawful carnal knowledge of a girl under 12), s 216 Criminal Code (unlawful carnal knowledge of a girl under 16 or an idiot), ss 218 and 219 (procuring). It is notable that two of these offences relate to children or young people. The need to have care in relying on children's evidence in any criminal case has been dealt with in various cases (eg R v Barker (1956) No 96, following R v Campbell, (1956) 40 Cr App R 95).

There is no statutory requirement for corroboration in incest, (the count before this Court), nor, for that matter, in other offences of a sexual nature, eg rape. It is referred to as a rule of practice and has been dealt with most recently by the Supreme Court in Didei v The State [1990] PNGLR 458. There is no evidence recorded in that judgment why the rule applies in sexual offences. The Supreme Court, after noting that if the Court is satisfied the complainant is telling nothing other than the truth it may proceed to convict, goes on to remark that the reason for the corroboration rule is "easy to understand". Allegations of this nature are easy to make but difficult to refute. A similar remark has been referred to in McCallum v Buibui [1975] PNGLR 439 at 445, and the Supreme Court refers to English cases where it was said that convicting on the evidence of the woman or girl alone is "really dangerous". In R v Henry (1968) 53 Cr App R 150 at 153, Salmon LJ said, "This 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. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all". In the English Court of Appeal, Henry and a co-accused named Manning were charged with rape of the same girl in a house where they detained her. The appeal by Henry was quashed, but that of Manning was upheld on the basis that the trial Judge had warned of the corroboration provisions when summing the evidence against Henry, but not Manning.

The common law and rules relating to corroboration are stated in Halsbury's Laws of England, 4th edn, vol 17, para 291, as follows:

"In some cases, although corroboration is not required by law, the court may refuse and will hesitate to act upon evidence unless it is corroborated. This is so in cases (1) where there is evidence by accomplices; (2) of rape and other sexual offences (except those requiring corroboration by law) against women, boys, and girls; (3) of claims against a deceased person's estate; and (4) in certain matrimonial cases."

It would be noted that the common law attitude is that corroboration is required in the cases with women, boys, and girls. It does not include men. The rules relating to corroboration were apparently extended in Papua New Guinea to include men, if one takes as a guide the decision in R v Finch (1959) unreported No 146. That case involved the charges of sexual offences between two males, and it was considered "dangerous to convict on uncorroborated testimony in such cases".

Although the rules of corroboration in sexual offences have been adopted and extended in Papua New Guinea, the rulings on corroboration of evidence of accomplices have not. It was held in State v Fineko [1978] PNGLR 262 at 263:

"In Papua New Guinea, the law permits conviction on the evidence of an accomplice alone. Some of the decisions under the English common law as to the evidence of accomplices, and in particular the way in which the tribunal must be directed, I consider may be regarded as inappropriate in Papua New Guinea conditions".

Similarly, there was reservation in adopting the attitude to "fresh complaint" sexual offences - also on cultural grounds, if regard is had to Birch v The State [1979] PNGLR 75.

It is noted in Birch v The State, referring to Kilby v R [1973] HCA 30; [1973] 1 ALR 283, that when the common law rule concerning corroboration, in particular the irrelevance of "fresh complaint" in sexual offences against women, was adopted in the laws of colonial Australia, it was treated "less rigidly" than it was in the original common law country - England.

I have not been referred to, nor been able to find:

1. any historical reason why the corroboration rule in sexual offences was adopted more strictly in Papua New Guinea, when other rules of corroboration were not having regard to cultural differences;

2. the basis of evidence or fact on which the rule is grounded.

It seems to me the remarks about fabrication have taken on the patina of fact by being often repeated. Why would a person subject herself/himself to the public cross-examination and exposure of intimate physical detail and private life purely on a fabricated allegation?

Why should this rule of corroboration apply to a sexual offence when it does not apply to other serious offences, eg murder or burglary. The comment, "It was easy to accuse and hard to deny", can be said in regard to such crimes, where the courts are equally obliged to direct the normal rules of evidence assessing facts, credibility, and weight. Research in U.S.A. has found that the number of false allegations of rape is the same as false allegations of burglary - a low percentage of the reported incidents of the crimes.

The rule is an old one. It appears to go back more than one generation, to the time when women were regarded as unstable, emotional, and lacking in intelligence. Attitudes have changed. There are women doctors, engineers, Prime Ministers, Presidents. Our Constitution stresses equality and that all are equal before the law. Perhaps the time has come to review the basis of this attitude to the evidence in sexual offences.

As noted, I have not been referred to, and cannot find, why some corroboration rules were circumspectly adopted into Papua New Guinea and this one was not. If one has regard solely to the number of women convicted of crimes in comparison to the total (by taking, as one example, the number serving sentences and in remand here at Kerevat CIS, where the total incarcerated, both convicted and remand, is 494, of whom 4 are female, a ratio of 124:1). The question that springs to mind is: "Why are the women of Papua New Guinea apparently so law abiding yet there is an assumption they will find it easy to make false allegations of sexual offences?" No one has presented this court with an explanation.

The courts in England and Australia have recently been criticised publicly in the media for comments made in trials involving sexual offences. Thankfully, our courts have not left themselves open to such criticism.

This court is bound by the Supreme Court and, of course, I apply its ruling to the facts and issues before me.

I find the prosecutrix truthful, and I am satisfied she is telling nothing other than the truth. The defendant gave no evidence, and the evidence of the State is unrebutted. The defendant sat silently, turning his side and back towards the witnesses or head down at times.

Although I consider the prosecutrix truthful and her evidence unrebutted for elimination of doubt, I add that I consider her evidence corroborated by:

1. the defendant's admission to the police;

2. the defendant's admission in his s 96 statement in the District Court;

3. the evidence of the relatives of the manner and time the defendant took the prosecutrix away;

4. the evidence of the "solving" before the village committee, indicating recent complaint.

________________________________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.