Balbal v State [2007] PGSC 16; SC860 (22 February 2007)

SC860

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 05 OF 2004

BETWEEN:

MICHAEL TENARAM BALBAL
Appellant

AND

THE STATE
Respondent

Kokopo: Sevua, Kandakasi, and Gabi, JJ.

2006: 30 August
2007: 22 February

APPEAL - CRIMINAL LAW – Appeal against conviction - Appellant obliged to show identifiable error committed by trial judge to warrant Supreme Court’s interference of trial judge's finding - Where credibility of witnesses is an issue – Trial judge in better position than appellate court to determine the issue unless clearly identifiable error by trial judge is demonstrated - Appellant failing to establish identifiable error by trial judge - Appeal dismissed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Witnesses of tender age in sexual offences – Sexual offences - Need to caution such witnesses of the risks of giving false evidence under oath – Corroboration no longer required in sexual offences – Court can convict on uncorroborated evidence of tender aged children provided the Court warns itself of the dangers inherent in acting on such evidence.

CRIMINAL LAW - Verdict –Indecently dealing with girl under 16 years old and rape of daughter by natural father – Victim in grade 1 at time of offence and in grade 3 at time of trial – Complaint made some time later – Victim’s evidence corroborated by other evidence – Evidence in rebuttal not credible - No good reason to doubt victim’ s and other evidence for the prosecution – Trial judge viewed scene - Finding of guilt beyond any reasonable doubt open – No serious error by trial judge identified - Trial judge in better position to appreciate scene, observe demeanour of witnesses and determine credibility of witnesses –– Guilty verdict and conviction confirmed.

EVIDENCE - Evidence of tender aged witness recalling and giving evidence of incidents occurring 1 year 8 months back - Credibility of – Whether dislike of accused over constant beating of mother sufficient reason for victim and witnesses to make up claim and testify against accused – No serious doubt created in testimony of victim’s and witnesses’ under cross-examination – Accused own evidence lacking credibility – Acceptance of prosecution case by trial judge – No serious error by trial judge identified – No reason to interfere with trial judge’s decision.

Cases Cited:

John Beng v. The State [1976] PNGLR 115.
Rolf Schubert v. The State [1979] PNGLR 66.
Brian John Lewis v. The Independent State of Papua New Guinea [1980] PNGLR 219.
Peter Townsend v. George Oika [1981] PNGLR 12.
Didei v. The State [1990] PNGLR 458.
The State v. Stuart Hamilton Merriam [1994] PNGLR 104.
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.
David Kandakason v. The State (07/07/98) SC558.
Gibson Gunure Ohizave v. The State (26/11/98) SC595.
David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao (30/11/00) SC655.
The State v. Moki Lepi (30/04/02) N2264.
Jimmy Ono v. The State (04/10/02) SC698.
The State v. Moki Lepi (No 3) (25/11/04) N2734.
Mountain Fuel Freighters Limited v. ST Trading Limited (03/03/06) SC826.

Counsels:
Appellant in Person.
Mr. J. Pambel, for the Respondent.

22 February, 2007

1. BY THE COURT: You are appealing against the decision of the National Court (per Lenalia J.) handed down on 21 November 2003. In that decision, the learned trial Judge found you guilty of two charges. The first charge was for indecently dealing with a girl under the age of 16 and the second charge was for raping the same girl. Both of these acts were contrary to sections 217 and 347 respectively of the Criminal Code. The victim was your own daughter (named), who was then in primary school. You allegedly committed the offences on 30 June 2001, at Ranguna Village in the Kokopo area of this Province.

2. In your notice of appeal, as paraphrased by your learned counsel Mr. Donald in his submissions on your behalf, you raise the following grounds:

"(a) That the learned trial judge was wrong to accept the evidence of the victim and the mother which evidence was not true.

(b) The learned trial judge did not consider his evidence.

(c) The allegations giving rise to the charges were framed up by his in-laws who interfered with his wife and daughter (victim) and two other witnesses who did not turn up for trial.

(d) There was no evidence regarding the crime scene.

(e) There was no eye witness evidence.

(f) There was no Medical Report or evidence."

Your Submissions

3. In your submission, your learned counsel Mr. Donald, conceded that, there was no basis to advance your claims that, the witnesses were interfered with and that, there was no eye witness. Accordingly, you abandoned these grounds or parts of the basis for your appeal. Then for your remaining grounds of appeal, your learned counsel advanced a number of arguments. First, he argued that, the victim and her mother’s evidence should not have been believed and accepted because, there were inconsistencies, the alleged indecent dealing and rape of the victim were not promptly reported and that, they had a motive to falsely claim and testify against you. He submitted that, the motive was to get you convicted of the offences in retaliation of your constantly beating up the victim’s mother, your wife, and some trouble arising out of that between yourself and your parents in-law. Secondly, he submitted that, you gave a credible account of what happened to the victim but the learned trial Judge did not give any consideration to your evidence and gave no reason for rejecting it. Thirdly, he submitted that, the scene of the crime was not preserved and as such, the visit of the scene about 1 year 8 months later, could not be of any assistance. Fourthly, he submitted that, there was serious objection to the admission into evidence the only medical report that was tendered. He added that, the learned trial Judge should have exercised much care before accepting and acting on the basis of that report. Finally, your learned counsel submitted that, in all of the circumstances, the conviction was unsafe. Therefore this Court should quash it and acquit you.

State’s Response

4. The State in response, first submitted that, the learned trial Judge carefully considered each of the witnesses testimonies and decided to accept the evidence of the witnesses called by the State which included, the victim and her mother as credible. Secondly, it submitted that, that evidence was supported by the other evidence, such as the medical report and the visit to the scene. Thirdly, it submitted that, the learned trial Judge correctly found your explanations as to what happened to the victim incredible and therefore rejected it. Fourthly, the State submitted that, the trial Judge was in a better position to observe and pass judgment on the credibility of each of the witnesses based on his observation of their demeanour in the witness box, and having visited the scene of the crimes, an opportunity this Court sitting in appeal does not have. Fifthly, the State further submitted that, the appellant has failed to demonstrate that, in all of the circumstances, the learned trial Judge fell into serious error warranting correction by this Court. On the basis of these submissions, the State finally submitted that, the Court should dismiss your appeal as having no merit.

Relevant Issues

5. From the submissions of both your lawyer and the State, we note the following issues are presented for our consideration and determination:

(1). Were there inconsistencies in the testimonies of the victim and her mother?

(2). If the answer to the first issue is "yes", then were those inconsistencies serious enough to question the credibility of the witnesses and their testimonies?

(3). Was the belated complaint by the victim suggestive of a false claim against you?

(4). Did the State fail to adduce any credible evidence of the scene and a medical report corroborating the prosecution’s case?

(5). Did you give a credible testimony casting a serious doubt on the prosecution’s case?

(6). In all of the circumstances, did the learned trial Judge fall into any identifiable and serious error such that, it vitiates his decision on verdict thereby warranting an interference and correction by this Court?

6. The first five (5) issues relate to the evidence that were called by the parties and how the learned trial Judge treated them. The final issue calls for an overall consideration of how the learned trial Judge arrived at his decision on verdict. It would therefore, be appropriate for us to first consider the evidence adduced by the State in a bid to establish the charges against you. Then consider the evidence you called to rebut it. In doing that, we will have regard to the issues of inconsistency, belated complaint and evidence of the scene and medical reports. Thereafter, we will turn to the question of whether the learned trial Judge fell into any serious error that warrants an interference of his findings by this Court.

The State’s Case

7. We note from the records that, the State called three witnesses and admitted into evidence a number of witnesses’ statements with your consent. The key witnesses were the victim and her brother, your natural daughter and son respectively. The victim testified that, on the day of the offence, 30 June 2001, you went and got her and her brother from their grandparents’ house and took them to a store to buy some food. Earlier, they and their mother, your wife, took refuge at their grandparents’ house from your constant beating of their mother. The victim and the other children hated you for doing that to their mother. This has resulted in the victim being closer to her maternal grandparents then you.

8. The victim and her brother accompanied you toward the place where you wanted them to buy some food. On the way, near some bushes where there is a hill, you gave your son some money and asked him to go to the store and buy certain store goods you wanted him to buy. At that time, you told the children that, you will remain with your daughter. As soon as the son was out of sight, you told your daughter (victim) to go into the nearby bushes and away from the track where you had been walking with the children.

9. You then removed here clothes and started to fondle and proceeded to push your fingers into her vagina. Thereafter, you caused her to lay on the ground. You then laid on top of her and pushed your penis into her vagina. As you did that, the victim felt pain and she cried and she realized that blood was running down her legs. Eventually, you pulled your penis out of the victim’s vagina. You then carried her out of where you were and down the hill onto the track, where your son (the victim’s brother) was already waiting. On meeting up with your son, you told him that, the victim had fallen into a hole. Then the three of you - you and your two children, walked to the children’s grandparent’s house, with you carrying the victim all the way.

10. Upon reaching the grandparents’ house, you called for your wife, who is the mother of the victim. When the mother came out to you, you told her that a piece of stick poked the victim’s vagina and that was why blood was running out from her vagina. The victim did not report to her mother what you did to her as you had threatened to kill her. You issued that threat at the place where you committed the offences against the victim and long before getting to your wife’s parent’s house.

11. Prior to the commission of the offences, you had been out drinking alcohol and came late in the night to your wife’s parents’ house. You joined the sleeping family. While everyone was sleeping, you fondled the victim’s vagina with your hands. The victim tried to scream but you told her not to and she did not tell her mother or anyone else because you stopped her. She also testified of you previously putting your penis into her vagina, though not clear whether you achieve actual penetration. She testified that, she could not tell anyone of what you did on the previous occasions because you were stopping her. The victim did not tell the police of these prior instances in a statement she gave to the police.

12. After you told your wife and mother of the victim of your version of what happened to her, the victim was taken to the hospital for medical treatment. At the hospital, some of the staff there saw and treated the victim. The treatment stopped the victim bleeding from her vagina.

13. The second witness for the State was your son. He was in Grade 2 at the time of the alleged offence and was doing Grade 4 at the time of the trial. So he was a child of tender age just like his sister, the victim. He gave evidence confirming what the victim said in her evidence but minus your fondling of the victim’s vagina on the occasions she spoke of and you putting your penis into her vagina. This witness added a number of other facts. First, he said, after you informed him that his sister had fallen into a hole, you showed him where the hole was, about 40 to 50 meters away from the track, measuring about less than half a meter. Secondly, he said, you told him that, his sister slipped and fell into the hole as they walked down the hill. Thirdly, he said he saw coconut leaves and some sticks lying flat on the floor of the hole but with no evidence of any blood either in the hole or the track leading out of the hole. Fourthly, he said there was no evidence of anyone falling into the hole. Fifthly, he said he heard the victim crying before you and the victim met up with the witness at the track. Finally, he said you told him and the victim not to say anything about what happened to the victim. Only you will do that.

14. The third and final witness called for the State was the victim’s mother. She did not witness any of the things the victim said you did to her. However, she did give a testimony that corroborated the evidence of the victim and her brother in relation to your telling her how the victim injured herself and taking her to the hospital. The witness then added a few more things. First she said, she had her suspicions as to the real cause of the bleeding from the victim’s vagina. Secondly, she said, when you and she took the victim to the hospital you insisted on taking the victim back to the village instead of waiting for a doctor to see her. Thirdly, she said, about three months later, when the story of your carrying the victim down the hill came to light, she questioned the victim and the victim told her of the things you did to her. On the basis of what the victim said to the witness, you were reported to police. Finally, she testified that despite all the beating you gave her, she was not desirous of having you arrested and imprisoned because she did not want to jeopardize her marriage to you.

Your Case

15. In your defence, you denied the whole of the prosecution’s claim and the evidence against you. Despite having indicated to the Court that, you had witnesses to support you in your version of what happened to the victim, you did not call any other witness to support you. Hence, you were the only one that gave evidence in your defence, maintaining your claim of the victim slipping and falling into a hole with roots of a tree sticking out. As she fell, one of those sticks penetrated the victim’s vagina from which she bled. You further testified that, because of animosities that have developed between you on the one side and your wife and her parents and relatives on the other side, the claims of you indecently dealing with and raping your own daughter were brought up. You did not produce any evidence to confirm or support any of your claims.

Visit of the Scene

16. In addition to the above evidence, the National Court took a visit of the scene. There was no dispute that the scene was not preserved in the same way as it was at the time of the offence. However, the visit of the scene did show where the hill, the track, houses, store and hole could have been at the time of the offence.

The Trial Judge’s Approach

17. The learned trial Judge carefully, noted all of the evidence produced before him and concluded as follows:

"The evidence by the State is overwhelming. The explanation by the accused that the victim fell into the hole in a sitting position causing the victim to sit astride a piece of stick or some tree roots does not make any sense to the Court at all. On viewing the scene, the court party observed that Michael Maita confirmed his testimony that the victim was very small, by then was being carried down from the hill and she was already crying by then. Though both the victim and Maita are quite young I took them to have understood the nature of the oath they took and they were witnesses of truth. Counsel’s submission that there were inconsistencies in the evidence of the State in my view does not affect the truthfulness of the State’s case."

18. The learned trial Judge then referred to two (2) authorities and warned himself of the dangers of proceeding to convict on the uncorroborated evidence of a victim of a sexual offence. Thereafter, His Honour said:

"I hold that the evidence of the victim is corroborated by the evidence of her little brother...This witness on his testimony, although vigorously cross-examined, he was unshaken and he was the eyewitness to seeing the accused carrying the victim down hill. Corroboration is also supported by the victim’s mother’s evidence that when she had suspicion about the nature of the victim’s injuries, she encouraged [the victim] that she should not be afraid of her father if the accused did anything to her. The victim told her about what happened and on the basis of the foregoing I must return a (sic) verdicts of guilty to the two charges."

The Relevant Law

19. Before proceeding any further, we remind ourselves that, an appeal against conviction is usually pursuant to and governed by s. 22 of the Supreme Court Act.[1] For such an appeal to succeed, the Court has to be satisfied that, there is in all of the circumstances, a reasonable doubt as to the safeness and satisfactoriness of the verdict. That has been made clear by a large number of decisions of the Supreme Court such as the one in John Beng v. The State.[2] It follows therefore that, unless we are persuaded in all of the circumstances of your case that, National Court’s findings of guilt on the two charges against you is unsafe and unsatisfactory, your appeal can not be upheld.

20. This requires us to examine how the learned trial Judge arrived at his decision against you. We would then have that checked against what the law required of the learned trial Judge in the particular circumstances of your case. Then finally determine whether, the learned trial Judge safely and satisfactorily arrived at the decision to find you guilty. This has to do with the reception, assessment and acceptance or rejection of the evidence called by the parties.

21. The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts.[3] This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult.[4] Another important factor is the demeanour of the witnesses in the witness box as they give their testimonies. Witnesses’ performance in the witness box can indicate whether they are truthful witnesses telling it all or are untruthful witnesses, withhold the truths.[5] It is well accepted law that, a trial Judge is in a better position to observe the demeanour of witnesses and pass judgments as to the truthfulness or otherwise of witnesses and their testimonies.[6] Given that position, this Court is often reluctant to readily interfere with the findings of primary facts by a trial judge.[7]

22. It is also well settled law that, where tender aged children come into court and give evidence, care must be exercised so as to ensure that, they understand the effect of the oath, if they choose to give evidence under oath, and the dangers inherent in proceeding to act on such witnesses’ evidence.[8] Further, in sexual offence cases, until the very recent amendments to the Criminal Code, generally, the prosecution did not easily get a conviction if all it produced was the uncorroborated evidence of the victim of such offences. However, provided the Court could appropriately warn itself of the dangers inherent in proceeding to convict on the uncorroborated evidence of the victim, it could proceed to convict in some cases.[9] The recent amendments to the Criminal Code now make it possible for a court to convict on the uncorroborated evidence of a victim of a sexual offence as corroboration is no longer required.[10]

23. Further, it is also well settled law that, in order for a claim of rape or such other sexual offences to be accepted as credible, there must be evidence of recent complaint of the offence to a third party. In our view, Sakora J., correctly discussed the genesis of this requirement in his judgment in The State v. Stuart Hamilton Merriam[11] and concluded:

"Whatever its origin, the phenomena survives into modern law. So the requirement in sexual offences is only that the complaint be made voluntarily and at the first opportunity reasonably afforded.

...

Whether the complaint was "recent" or not is a question of fact and degree in every case. Certainly, it was not necessary that it was made within the comparatively short period required for admissibility under the res gestae (contemporaneity) rule.

On the other hand, complaint must have been made at the first opportunity which reasonably presented itself. Thus, it is not a question of the length of time per se."

24. His Honour, went on to correctly say in our view that, a court considering this issue must be mindful of the fact that, where the victims of such offence are children, there is usually a lack of an appreciation of the wrongfulness of what is done to them. They would therefore be reluctant to promptly report for a host of reasons.

25. Applying these principles to the case before him, Sakora J., accepted the testimonies of the victim and convicted the accused. The case before his Honour was a case of sodomy of an 8 or 9 year old boy who did not complain of the offence against him until 10 years after the date of the offence. His Honour found as reasons for not complaining earlier that, the victim was of tender age, shy, frightened and afraid he might not be believed and would probably be laughed at until he was able to get over those fears.

26. In his decision in The State v. Moki Lepi,[12] Kandakasi J., adopted and applied the above principles. In that case, the victim was a young girl aged 5 at the time of the offence against her and 9 years old at the time of the trial. She did not complain to anyone of the things the accused did to her until some three years later. The Court found that, that was the earliest opportunity the victim had to report to anyone. She did not appreciate the fact that, what the accused did to her were wrong until her mother decided it was time to give her some education on the kind of bad sexual things men or boys could do to girls. The accused was convicted and sentenced to a term of imprisonment. The accused appealed against his conviction and sentence. The Supreme Court dismissed the appeal against conviction and confirmed it.[13]

27. Finally, in so far as is relevant, the Supreme Court in David Kandakason v. The State,[14] reviewed the authorities on point regarding prior inconsistent statements and noted the relevant position at law in these terms:

These cases tend to encourage flexibility. The High Court of Australia in Driscoll -v- The Queen ...whilst adopting the first part of the proposition in Golder, Jones and Porritt ... said ‘it cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable.’ In other words the existence of a prior inconsistent statement ipso facto does not make a witness's evidence unreliable. On the other hand the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness’s previous written statement to prove that his subsequent sworn testimony is untrue. In R.v. Prestano & Ors ...it was held: ‘that the witness having given evidence which directly opposed statements made to the police it was permissible for the Crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong’. The Court held further that the evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, which could be attached to it.

(Emphasis supplied)

28. As would be apparent, questions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement.

Application of the Relevant Law

29. We now turn to an application of the above principles of law to your case. The learned trial Judge discussed each of the witnesses’ evidence. That included your own evidence as well. His Honour noted and appreciated that, the victim and her brother were tender aged children. His Honour noted in particular that, the victim and her brother did appreciate the fact and the meaning of taking and giving their evidence under oath. We note at the same time that, the learned trial Judge appears to have failed to administer to each of these witnesses being tender aged, the two ways in which they could give their testimonies, namely a statement or evidence under oath. However, given the witnesses appreciating the fact of the oath and the consequences of giving their testimonies under oath, the failure of the learned trial Judge is in our view, of no serious consequence on the eventual outcome.

30. Although it was not necessary, the learned trial Judge warned himself of the dangers of proceeding to convict on the uncorroborated evidence of a victim of a sexual offence. He noted that, the brother of the victim corroborated the victim’s testimony of your carrying her down from the hill with blood coming down the victim’s legs. That witness confirmed having heard his sister cry from the bush area. The learned trial Judge noted that, this witness was subjected to rigorous cross-examination by your lawyer and he remained unshaken. Although the learned trial Judge did not say it, we note that the same applies to the victim. She too was cross-examined extensively and she remained unshaken. Accordingly, we note that, if indeed the allegations against you were framed up as you claim, the rigorous cross-examinations of these tender aged children could have easily broken them down but they did not. This is vital because, they could not have been informed in precise terms of the kind of questions your lawyer in cross-examination could have put to them.

31. Additionally, the learned trial Judge noted that, your wife’s testimony corroborated the victim’s testimony. Her testimony was that, because of her assuring the victim of protection from you, the victim revealed all that you did against her. She stated in clear terms that, she was not actuated by any desire to get you imprisoned for your repeated violence against her. We note that, if she wanted you punished, she would have gone to the police to have you arrested and charged for those offences. However, she did not do that, because her desire however was for you to change and for you to remain her husband. Hence, there was no need for her to use the children to come up with false allegations of you sexually violating and abusing the victim, your own daughter and use your children as witnesses. Only an irresponsible mother would use tender aged children to come up with false claims of sexual violation against them by their natural father because he beats up their mother. You produced no evidence of this witness being an irresponsible mother having a tendency of using the children for her own gain.

32. Further, the learned trial Judge effectively compared and contrasted your testimony against the testimony of the victim and his brother as supported by their mother. His Honour found your explanation of the victim falling into a hole and a stick poking her vagina did not make any sense. We are of the same view as the learned trial Judge was and find that, this was an inevitable finding following the acceptance of the victim and her brother’s testimony. The reason for this is simple. There was no contest that, the victim’s hymen was completely ruptured on the day of the alleged offence you were charged with. There is also no issue that, the hymen in a young girl or a virgin is located internally in her vagina. Usually the hymen gets ruptured by the insertion of the male sex organ or by some trauma applied to it. In this case, it was your claim that, the victim’s vagina was poked by a stick causing her to bleed from it. In order for that claim to be credible, there had to be evidence of how the stick was able to only penetrate and rupture the hymen of the victim and leave no trace of any injury to the outside and internal surface area of the vagina. There also had to be evidence of an object other than your finger or your penis penetrating the victim’s vagina. The only medical evidence adduced by the State does not support your claim. It was incumbent on you to produce the appropriate evidence to support your claims and thereby rebut the State’s case. You however, failed to do that.

33. We do note and appreciate the fact that, you objected to the admission into evidence the only medical report. The learned trial Judge overruled your objections and allowed the report in the form of an annexure to an affidavit by a medical doctor. There is no challenge against the decision to admit the affidavit annexing the medical report. It is well settled law that, once a piece of evidence is admitted, the Court is obliged to consider and take that into account before arriving at a decision[15] which is what the learned trial Judge did in your case. Your argument is that, the medical report did not come from the person who examined the victim. Therefore you argued that, the medical report should not have been relied upon. A perusal of the affidavit annexing the medical report clearly shows that, both the affidavit and the medical report where done by the same person. There is nothing to suggest that, the examination of the victim was by a doctor other than the deponent of the affidavit and author of the medical report. You claimed that, someone else carried out the examination of the plaintiff. Hence, it was incumbent upon you to produce evidence supporting that claim but you failed to do that. We are of the view that, the learned trial Judge was entitled to consider the evidence that was before him, which included the medical report, and the other evidence. Thus, we can not see how the learned trial Judge could have fallen into any identifiable error here.

34. When assessing the evidence before him, the learned trial Judge did note your submissions that, there were inconsistencies in the evidence adduced against you. However, His Honour decided that the inconsistencies were insignificant and did not affect the credibility of the State’s witnesses. In your submissions before us, you try to make much out of the fact that, the victim and her mother gave a statement each to the police. In their statements they spoke only of the one incident of indecent dealing and raping of the victim as alleged in the indictment against you. However, in their evidence, they spoke of two other earlier incidents as well. You therefore, submitted that, there were inconsistencies in their testimonies. Accordingly, you submitted that, the witnesses should not have been accepted as credible witnesses but the learned trial Judge erroneously accepted them as credible witness, accepted their evidence and acted upon their evidence.

35. Allowing ourselves to be guided by the relevant law on point as already noted above, we are of the view that, the inclusion of the prior incidents of your indecently dealing with the victim disclosed in the witnesses’ oral testimonies did not make their earlier statements inconsistent. They merely added to what they had already told the police without contradicting their earlier statements. Besides, the witnesses were not concerned and were not asked in relation to the prior incidents. The focus was on the offences with which you were charged. If however, there were any inconsistencies they were very minor and did not seriously affect the credibility of the witnesses. Hence, the learned trial Judge did not fall into any identifiable and serious error here too.

36. Ultimately, the learned trial Judge found the State’s evidence overwhelming against you and therefore found you guilty on both of the charges you stood trial for. A careful perusal of the transcript of proceedings demonstrate clearly to us that, the findings of facts made by the learned trial Judge were open to him and were supported by the evidence placed before him. The evidence included the learned trial judge’s view of the scene which enabled him to appreciate first hand the various and relevant locations in terms of the hole, the hill, the store and the nearest house from where you allegedly committed the offences. The learned trial Judge also observed the demeanour of each of the witnesses. We are in no position to appreciate what the learned trial Judge was able to appreciate from his visit of the scene and observation of the demeanour of each of the witnesses.

37. You created no doubt in the States case against you. You indicated to the trial court that, you would call witnesses to support you but failed to come good on that. Similarly, you failed to secure and adduce evidence to support your claims. We find no error in the learned trial judge’s findings of fact and the way in which he arrived at his findings that warrants interference by this Court. Accordingly, we find that, your appeal is without merit. Consequently we dismiss your appeal and confirm the National Court’s convictions against you on both the charges.

38. The formal orders of the Court are thus as follows:

(1) The Appeal against conviction is dismissed.

(2) The convictions by the National Court are confirmed.

_____________________________

Appellant in Person
The Public Prosecutor: Lawyer for the Respondent

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^[1] Chp. 37.
^[2] [1976] PNGLR 115.
^[3] See for examples, Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528, per Los, Sheehan and Kirriwom JJ.
^[4] See for examples of cases on point, Jimmy Ono v. The State (04/10/02) SC698, per Hinchliffe, Sevua and Kandakasi JJ.
^[5] Gibson Gunure Ohizave v. The State (26/11/98) SC595, per Los, Sheehan and Akuram JJ.
^[6] David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao (30/11/00) SC655, per Los, Jalina and Kirriwom JJ.
^[7] Brian John Lewis v. The Independent State of Papua New Guinea [1980] PNGLR 219, per Greville–Smith, Andrew, and Miles JJ.
^[8] See Rolf Schubert v. The State [1979] PNGLR 66, per Prentice CJ, Raine DCJ and Andrew J.
^[9] Peter Townsend v. George Oika [1981] PNGLR 12, per Greville-Smith, Pratt and Miles JJ; Didei v. The State [1990] PNGLR 458, per Kapi DCJ, Sheehan and Salika JJ.
^[10] Section 229H Criminal Code (Sexual Offences and Crimes against Children) Act 2002.
^[11][1994] PNGLR 104, pp. 110 – 113.
^[12] (30/04/02) N2264.
^[13] The Supreme Court did not publish any judgment but the out come of the appeal is recorded in the National Court judgment in The State v. Moki Lepi (No 3) (25/11/04) N2734.
^[14] (07/07/98) SC558, per Amet CJ, Los and Kirriwom JJ.
^[15] Mountain Fuel Freighters Limited v. ST Trading Limited (03/03/06) SC826, per Salika, Kandakasi and David JJ.