Kapau v The State [1996] PGSC 20; [1996] PNGLR 96 (2 August 1996)

PNG Law Reports 1996

[1996] PNGLR 96 - Chris Kapau v The State

[1996] PNGLR 96

SC506

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHRIS KAPAU

V

THE STATE

Wewak

Kapi DCJ Los Sevua JJ

30 July 1996

2 August 1996

JUDICIAL REVIEW - Out of time - Appellant appeared in person - Court proceeded as a judicial review under s 155(2) Constitution.

CONSTITUTIONAL LAW - Judicial review - s 155(2)(b) of the Constitution - Review of findings of fact and sentence - Not falling within the principles enunciated in Aihi v The State [1981] PNGLR 81.

PRACTICE AND PROCEDURE - Rule of practice which requires that a Court should give warning of the dangers of acting on uncorroborated evidence in sexual cases - May be raised as a ground of appeal under the Supreme Court Act but cannot be raised by way of judicial review pursuant to s 155(2)(b) of the Constitution.

Facts

The applicant was convicted for the offence of rape and sentenced to four and a half years imprisonment on 10 April, 1995. He lodged an appeal, which was received by the Supreme Court Registry on the 21 August, 1995. The appeal was therefore outside the 40 days time limit as required under the Supreme Court Act. The Supreme Court however, proceeded to deal with the case as a judicial review matter as provided under s 155 (2)(b) of the Constitution.

Held

N1>1.       The appeal is out of time and therefore the appellant has lost his right of appeal.

N1>2.       The grounds for review relied on by the appellant are grounds which could properly be dealt with by the Supreme Court if the appellant had complied with the provisions of the Supreme Court Act. As the appellant had lost his right to appeal, the grounds should be dismissed.

N1>3.       The rule of practice which requires that a Court should warn itself of the danger of convicting a person on the uncorroborated evidence of the prosecutrix in sexual offence cases as a ground of appeal is not available to the applicant as his appeal is out of time.

Cases Cited

Papua New Guinea cases cited

Aihi v The State [1981] PNGLR 81.

Didei v The State [1990] PNGLR 458.

Counsel

Applicant in person.

C Sambua, for the respondent.

2 August 1996

KAPI DCJ LOS SEVUA JJ: The applicant was found guilty of the offence of rape by the National Court on 10 April, 1995 and sentenced to four and a half years on the same day. He did not appeal within 40 days of the decision, but filed an appeal form which was received by the Registry of the Supreme Court on 29 August, 1995. It follows from this that the appeal is out of time and the applicant has lost his right of appeal under the Supreme Court Act.

This matter comes before us by way of a judicial review under s 155 (2) (b) of the Constitution. The principles applicable in such a review are set out in Aihi v The State [1981] PNGLR 81. This is a discretionary power and will be exercised “in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity.” The exercise of this discretion is not the same as the power exercised by this Court on an appeal under the Supreme Court Act.

The applicant has set out two grounds on which to review the decision of the National Court:

N2>1.       That the victim consented to having sexual intercourse.

N2>2.       That the sentence imposed was excessive in the circumstances.

The first ground of review challenges the findings of the trial judge in respect of the question whether there was consent given by the prosecutrix. This is a ground of appeal which might have been raised if the appellant had lodged an appeal under the provisions of the Supreme Court Act. This ground does not come within the principles enunciated in Aihi v The State (supra). We would dismiss this ground of review.

During submissions by counsel for the respondent, the Court raised a point of argument which was not taken up by the applicant in his grounds of review. In view of the fact that the applicant is unrepresented we allowed this matter to be argued. The point raised was whether the trial judge had warned herself of the dangers of convicting the applicant on the basis of uncorroborated evidence of the prosecutrix. In Didei v The State [1990] PNGLR 458 at pp 459-461 the Supreme Court said:

“There is of course no rule of law which requires, that the evidence of a woman complaining of rape shall be corroborated. If a Court is satisfied that the complainant is telling nothing other than the truth than it may proceed to convict on her evidence alone. But it has long been recognised that while a Court is entitled to accept the evidence of the complainant and convict on the evidence alone without corroboration, experience has shown that it is dangerous to do so.

Therefore a rule of practice has developed, one falling short of rule of law, which requires that the Court should give warning of the dangers of acting on uncorroborated evidence in sexual cases. In fact failure to avert properly and clearly to this rule of practice has been found to constitute an error sufficient to ground an appeal against conviction.

There is no need for a ‘formula’ type pronouncement regarding corroboration where there is in fact obvious initial corroboration and the trial judge points to it as being relied on to support a prosecutrix's story. But where there is no corroborative evidence, warning must be given and recorded.”

Counsel for the respondent had addressed this issue in his written submissions. His submission was that there was in fact corroboration of the issue of non consent by the husband, Tony and another witness Andrew who stated in their evidence that the prosecutrix was asleep at the time the applicant had sexual intercourse. In view of this corroboration, it was submitted that the requirement for the warning in Didei’s case is not required.

We are of the opinion that the evidence by the husband Tony and the witness Andrew cannot really go to corroborate the issue of non consent. Their evidence was based on the fact that the prosecutrix was seen lying down from a distance. Whether or not she was asleep is a matter only the prosecutrix can testify. Therefore, there was no corroboration of the issue of non consent. We therefore conclude that the warning set out in Didei’s case would be applicable.

The question we have to determine is whether the failure to observe the rule of practice set out in Didei’s case is a ground which would come within the principles enunciated in Aihi v The State (supra). The requirement set out in Didei’s case is a rule of practice and not a rule of law. It is a good practice which must be applied when dealing with finding of guilt of an accused solely based on the evidence of the prosecutrix without any corroboration. This relates basically to findings of fact and a failure to observe this rule may constitute an error sufficient for a ground of appeal under the Supreme Court Act. This ground would not be any different to grounds which challenges findings of fact by the trial judge. They are legitimate grounds of appeal under the Supreme Court Act, but they would not fall under the principles enunciated in Aihi v The State. The applicant has lost the right to appeal on these grounds at the expiration of 40 days of conviction. We would dismiss this ground of review.

The second ground of review relates to the sentence. The applicant submitted that the sentence of 4 years and 6 months was excessive in the circumstances. Again we are of the opinion that the applicant had a right to appeal against sentence with the leave of the Court under the provisions of the Supreme Court Act. He lost this right at the expiration of 40 days. However, if the applicant can show that there is some substantial injustice which is manifest in the sentence, leave may be granted to review the sentence. The leading authority on sentence in rape cases is Aubuku v The State [1987] PNGLR 267. We have examined the principles in that case and find that the sentence imposed in this case is well within the range. There is no substantial injustice which is manifest and therefore we would dismiss this ground of review.

The order of the Court is that leave for judicial review is refused and the application is dismissed. The conviction and sentence imposed by the National Court is confirmed.

Appellant in person.

Lawyer for the respondent: Public Prosecutor.