Yali v State [2007] PGSC 57; SC971 (10 August 2007)

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CRIMINAL LAW – appeal against conviction for rape, Criminal Code, s 347 – elements of offence – whether exculpatory documents given proper effect – whether trial judge required to warn that it is unsafe to find accused guilty in absence of corroboration – meaning of consent – Criminal Code, s 347A.

EVIDENCE – whether a person charged with an offence is a competent witness in other legal proceedings in connection with that offence – Evidence Act, s 14 – whether medical evidence supported the State’s case of non-consensual sex – whether inconsistencies in complainant’s evidence were satisfactorily explained – assessment of credibility of evidence of complainant.

This was an appeal against conviction after trial on one count of rape under s 347(1) of the Criminal Code. The issue at trial was whether sexual intercourse between the accused (the appellant in the Supreme Court) and the complainant was consensual. The appellant appealed on numerous grounds, which were regarded by the Supreme Court as giving rise to eight issues, viz whether the trial judge erred in fact and law by: (1) refusing an application under s 14(1) of the Evidence Act to prevent a State witness (the complainant’s sister) giving evidence, as she was charged with offences that were in connection with the charge against the appellant in the rape trial; (2) failing to give proper effect to exculpatory documents signed by the complainant, which showed that the allegation of rape was not true and that she wished to withdraw the charge; (3) failing to warn that it was unsafe to convict an accused charged with rape in the absence of corroboration; (4) failing to give appropriate weight to the medical evidence, which created reasonable doubt that sexual intercourse was without the complainant’s consent; (5) failing to give appropriate weight to the totality of the evidence, which created reasonable doubt that sexual intercourse was without the complainant’s consent; (6) failing to give appropriate weight to inconsistencies in the complainant’s evidence; (7) failing to give appropriate weight to the absence of evidence as to the complainant’s clothing at the time of the incident and the complainant’s inconsistent evidence about whether she was a virgin before the incident and her failure to answer proper questions put to her by defence counsel; and (8) misapplying the law as to consent.

Ian Napoleon Setep v the State (2001) SC666
The State v Atu Kote [1978] PNGLR 212
The State v James Yali Re Ruling on Evidence (No 2) (2005) N2932
The State v James Yali (2005) N3014
Vaii Rocky Maury v The State (2001) SC668

1. BY THE COURT: This appeal arises out of a criminal conviction against the appellant in proceeding No CR 368 of 2005, whereby the learned trial Judge in the National Court at Madang found the appellant guilty, after a trial (see The State v James Yali (2005) N3014).

2. The indictment presented by the State contained four charges against the appellant. At trial, the prosecutor informed the court that counts 3 and 4 were alternatives to counts 1 and 2. These counts are:

• count 1: s 350 of the Criminal Code, abduction;
• count 2: s 347 of the Criminal Code, rape;
• count 3: s 229E of the Criminal Code, abuse of trust;
• count 4: s 349 of the Criminal Code, sexual assault.

4. After a 12-day trial, on 13 December 2005, the trial court found the following:

1. As to count 1 on abduction, that there was insufficient evidence to support the conclusion that the victim was taken against her will.

2. As to count 2 on rape, that the prosecution had discharged the onus of proving beyond reasonable doubt that the victim did not consent to being sexually penetrated by the appellant. The court found the appellant guilty of rape.

3. As to count 3 on abuse of trust, that although the victim was aged 17 at the time of the incident, that there was no relationship of trust between the victim and the appellant for the purposes of s 229E of the Criminal Code.

4. As to count 4 on sexual assault, that although the court found that the victim did not consent to being sexually touched by the appellant, that as this related to an alternative charge, no conviction was recorded.

5. The appellant was acquitted of abduction (count 1) and abuse of trust (count 3). He was convicted of rape (count 2) and no conviction was recorded for sexual assault (count 4).

(b) the conviction of the appellant be quashed and a verdict of not guilty be entered;

(c) the guilty finding on the count of sexual assault pursuant to s 349 of the Criminal Code be quashed and a verdict of not guilty entered; and
(d) such further orders as the court sees fit.

An application for leave to appeal was also filed pursuant to a Supreme Court order of 6April 2006 in respect of the appeal against findings of fact above. During the hearing, Mr Manek for the respondent conceded that leave should be granted in respect of findings of fact, so we grant leave.

It is necessary that we set out in full all grounds of appeal. The notice of appeal is in three parts. They are at paragraph 3(a), containing 29 grounds, paragraph 3(b) containing six grounds and paragraph 3(c) containing seven grounds. These are:

(a) Under all the circumstances of the case, the verdict was unsafe or unsatisfactory having regard to, and for the reasons that:

“I wish to retract or recant the statement that I have signed which is being held by police – I would like to state that the statement held by the police was signed by me without myself being made aware of its full contents and implications – I signed the statement because I was picked up by Constable Adam Yawing who threatened me and forced me to sign the statement – about two days later upon realizing that I have signed a statement which was destructive and defamatory to Hon James Yali alleging the rape of myself by James Yali – my family and I wrote to the OIC CID on 28^th October 2004, and formally withdrew the complaint or statement – however I continued to receive police intimidation and threats to stand firm on the statement which I signed without knowing its contents – particularly from Constable Adam Yawing who did at one time under the influence of alcohol interview me in his house – I again wrote a letter to Deputy Commissioner Operations Mr Gari Baki on 12^th November 2004, and in the letter I clearly stated that the allegations of rape was made up and false and that the complaint be withdrawn against Hon James Yali – I denied the allegations of rape of myself by the Governor James Yali on 13October 2004, because I then clearly recall that it was around 9.00 pm and 9.30 pm James Yali (Junior) came around to our residence in his father’s vehicle and asked me to go with him. James Yali Jnr as everyone knows in our family is my boyfriend. So I went with him. About two hours later I was with James Yali Jnr at his father’s official residence when Hon James Yali arrived in Hon Alois Kingsley’s vehicle. Hon James Yali shouted at his son and demanded the keys of his vehicle from his son. After taking the keys Hon James Yali drove off and following Hon Alois Kingsley’s vehicle. James Yali Jnr walked me to my residence and left me there. I did not at any time report or lay any complaint against anyone nor did I visit any police station”.

“We refer to the above. This letter serves as an intention to formally withdraw the complaint against Hon James Yali laid by the above complainant Daniels Jnr.

The reasons behind the formal withdrawal of the complaint is personal which need not be mentioned here.

At this juncture, we formally withdraw the complaint laid by the said Daniels Jnr on Saturday 23^rd October 2004, pursuant to the powers enabling under the District Courts Act.

“Because no action was taken by your policemen in Madang in relation to my first letter of withdrawal letter of complaint, I now write direct to you that you could give the appropriate direction to your policemen in Madang to cease from taking any further action in relation to the false complaint.”

“We write to advise that our demand is that you pay K50,000.00 to us immediately and we will withdraw the complaint against you.

You make available to us K25,000.00 in cash before we withdraw the complaint and the other half be paid within 12 months after the matter has been withdrawn.

We also demand that an agreement be signed between you and the Daniels to ensure the above payments are made in accordance with the agreement.

when he ought to have directed himself that as a matter was a criminal trial, the evidence needed to establish guilt beyond a reasonable doubt.

“We write to advise that our demand is that you pay K50,000.00 to us immediately and we will withdraw the complaint against you.

You make available to us K25,000.00 in cash before we withdraw the complaint and the other half be paid within 12 months after the matter has been withdrawn.

We also demand that an agreement be signed between you and the Daniels to ensure the above payments made in accordance with the agreement.

“We refer to the above. This letter serves as an intention to formally withdraw the complaint against Hon James Yali laid by the above complainant Daniels Jnr.

The reasons behind the formal withdrawal of the complaint is personal which need not be mentioned here.

At this juncture, we formally withdraw the complaint laid by the said Daniels Jnr on Saturday, 23^rd October, 2004, pursuant to the powers enabling under the District Courts Act.

“We write to advise that our demand is that you pay K50,000.00 to us immediately and we will withdraw the complaint against you.

You make available to us K25,000.00 in cash before we withdraw the complaint and the other half be paid within 12 months after the matter has been withdrawn.

We also demand that an agreement be signed between you and the Daniels to ensure the above payments made in accordance with the agreement.

“We refer to the above. This letter serves as an intention to formally withdraw the complaint against Hon James Yali laid by the above complainant Daniels Jnr.

The reasons behind the formal withdrawal of the complaint is personal which need not be mentioned here.

At this juncture, we formally withdraw the complaint laid by the said Daniels Jnr on Saturday, 23^rd October 2004, pursuant to the powers enabling under the District Courts Act.

(i) Elizabeth Daniels was a person charged with an offence within the meaning of s 14 of the Evidence Act;

(ii) Elizabeth Daniels had been called as a witness by the prosecution in legal proceedings in connection with the offence within the meaning of s 14 of the Evidence Act.

(i) there is no warrant for a trial Judge declining to give effect to the provision on the basis that its application would produce an absurd result in the particular case;

(ii) there is no or no adequate basis for the conclusion reached by the trial Judge that the provision is not intended to prohibit a person from giving evidence in a case “simply because the prosecution witness has been charged with a related offence”;

(i) that “the court has to decide who to believe; the complainant or the accused”, and

(ii) he was not left with the impression that the complainant was clearly lying or unreliable,

when he ought to have directed himself that as the matter was a criminal trial, the evidence needed to establish guilt beyond a reasonable doubt.

(i) Elizabeth Daniels was a person charged with an offence within the meaning of s 14 of the Evidence Act;

(ii) Elizabeth Daniels had been called as a witness by the prosecution in legal proceedings in connection with the offence within the meaning of s 14 of the Evidence Act.

(i) there is no warrant for a trial Judge declining to give effect to the provision on the basis that its application would produce an absurd result in the particular case;

(iv) there was no or no sufficient basis for the holding of the trial Judge that s 14(1) is a law that supplements and regulates the constitutional right to remain silent, because the provision prohibits the calling of a person described in the provision, irrespective of whether such person wishes to give evidence or not;

(v) there is no inconsistency between the interpretation that s 14(1) provides a complete prohibition on the prosecution calling such a person to give evidence and s 14(2), since a person described in s 14(2) can be called by the defence;

(i) that “the court has to decide who to believe; the complainant or the accused”, and

(ii) he was not left with the impression that the complainant was clearly lying or unreliable,

when he ought to have directed himself that as the matter was a criminal trial, the evidence needed to establish guilt beyond a reasonable doubt.

(5) The learned trial Judge erred in law, whilst correctly finding that the State failed to tender the clothes the complainant was wearing and allegedly had stripped from her during the (alleged) incident, in failing to give any or any proper effect to such finding, and in drawing no adverse inference to the State’s case due to such failure.

(6) The learned trial Judge erred in law in allowing the accused to be asked, during the trial, in effect, whether the complainant and members of her family were lying, as the effect of such questioning was:

(i) failing to appreciate that at a criminal trial the critical question is whether the prosecution had proved the guilt of the accused beyond a reasonable doubt;

(7) The learned trial Judge erred in failing to give any or any proper effect to the complainant’s refusal and failure to answer valid questions asked of her by defence counsel during the trial (which were not objected to).

Firstly, we list the names of people who either gave evidence at the trial or did not but who are the “main players” in this case. They are:

Olivia Daniels – victim
Helen Daniels – victim’s mother
Elizabeth Daniels – victim’s older sister and appellants mistress or de facto wife
Brian Daniels – victim’s brother
Oscar Daniels Jnr – victim’s brother

James Yali – appellant
Angela Yali – appellant’s wife
Joe Paka – appellant’s associate
Masbud – appellant’s driver
Emil – appellant’s driver
James Yali Junior – appellant’s son
Michael Kasi – appellant’s first secretary
Wilfred – appellant’s bodyguard

As the grounds of appeal are lengthy and extensive, we have grouped all grounds under the issues to which they related and also under the relevant subheadings.

The grounds of appeal are only in relation to the charge of rape. On a thorough perusal of the grounds of appeal, we find these to be the issues:

i. Did the trial judge err when he refused the application by the appellant’s counsel under s 14(1) of the Evidence Act and found that witness Elizabeth Daniels was a competent witness considering there were criminal charges pending against her?

ii. Whether the trial judge failed to give proper effect to certain exhibits tendered which were referred to by the trial judge as “exculpatory documents?”

iii. Should the trial judge have held and directed himself that it was unsafe to find the accused guilty in the absence of corroboration?

iv. Was the medical evidence before the court such that it would have created a reasonable doubt in the trial judge’s mind that the act of sexual intercourse between the appellant and the victim was not consensual?

vi. As there were inconsistencies in the victim’s evidence, should the court then have found that the charges against the appellant had not been proven beyond reasonable doubt?

vii. Could the trial judge’s findings on the evidence in relation to the victim’s clothing, that she was a virgin immediately prior to the alleged rape and her refusal and her failure to answer questions put to her by defence counsel which were not objected to, have formed the basis on which the trial judge should then have acquitted the accused?

viii. Generally, whether the issue of consent was properly proven beyond reasonable doubt?

8. We now consider the various issues and the grounds of appeal from which they arise. For purposes of clarity, we have set out the relevant parts of the transcript of evidence relating to the grounds of appeal and the issues to demonstrate the application of the evidence to the law and vice versa as viewed and applied by the trial judge and as viewed by this bench. Thereafter, we will conclude with a summary of our reasons and findings.

Issue (i): Did the trial judge err when he refused the application by the appellant’s counsel under s 14(1) of the Evidence Act and when he found that witness Elizabeth Daniels was a competent witness considering there were criminal charges pending against her?

The grounds of appeal related to the above issue are set out at pars 3(a) (1) and (2) and 3(b)(1) and (2) of the notice of appeal.

9. In his ruling of 16^th November 2005 in The State v James Yali Re Ruling on Evidence (No 2) (2005) N2932, the learned trial judge said that the purpose of s14(1) is to ensure that a person charged with an offence is not forced to be a witness against himself or herself in any legal proceedings in connection with that offence. He held that s 14(1) is not intended to operate as a prohibition against a person who has been charged, from giving evidence in proceedings concerning another person and for another offence.

10. His Honour said further that the court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity or lead to a result unintended by the legislature or run counter to the dispensation of justice.

(1) A person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connection with the offence.

(2) Notwithstanding subsection (1), where a person charged with an offence is a witness he may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence.

11. Firstly, the learned trial judge found that the State’s submissions that the witness Elizabeth Daniels may be given immunity from prosecution, was very speculative. He decided not to give any weight to that (p 5 of decision on verdict and p 892 of the appeal book).

12. His Honour went further to find that Elizabeth Daniels is “a person charged with an offence” as she is presently facing charges of perverting the course of justice and compounding crimes, in proceedings CR 65 of 2005. The learned trial judge perused that file and although noting that it is an offence connected to the proceedings before him, found also that s 14 (1) of the Evidence Act when read together with s 37 (protection of the law) of the Constitution, s 572 (evidence in defence) of the Criminal Code and s 12 (accused as witness) of the Evidence Act, that it can safely be inferred that s 14(1) of the Evidence Act is another law intended to provide protection to persons charged with an offence at his or her trial or in any other legal proceedings in connection with the offence. He found that s 14(1) is not intended to prohibit a person from giving evidence in a case, simply because he or she has been charged with an offence that has a connection to the case. He found that the general rule is that all adult persons are both competent and compellable witnesses, which is regulated by the constitutional right to remain silent or the right not to be compelled to incriminate oneself. He found that this is apparent from s 14(2) of the Evidence Act which significantly qualifies s 14(1). Section 14(2) contemplates that a person charged with an offence can be a witness in the sort of proceedings referred to in s 14(1) in which case he or she may be asked any questions in cross-examination notwithstanding that would incriminate them as to the offence, which then ties in with s 12 of the Evidence Act, that an accused person is a competent but not a compellable witness. His Honour then referred to The State v Atu Kote [1978] PNGLR 212 where Andrew J whilst conducting the joint trial of two accused, Kote and Toto, on a charge of attempted unlawful killing, had to decide on a situation where the State tried to call Toto as a witness in the case against Kote when Kote had already pleaded not guilty and Toto had pleaded guilty. Defence counsel objected, relying on the then equivalent of s 14(1), s 72(1) of the Evidence Act 1975. Andrew J found that that section is intended to apply only to the accused person who is on trial, in that case Kote. His Honour the trial judge in this case then concluded that s 14(1) must be interpreted as to apply to and protect only the person charged with an offence at his or her trial of that offence or any other legal proceedings in connection with the offence and only where the person that is the prospective witness has been compelled to give evidence. He found that s 14 (1) does not apply to Elizabeth Daniels as she has not been compelled to give evidence in her trial (see p 10 and 11 of the decision and p 898 of the appeal book).

13. We find further and agree with the trial judge that the general rule that the accused is not a competent witness for the prosecution in any criminal case applies here. The effect of that rule is that one co-prisoner cannot be called by the prosecution to give evidence against another in the same case. In this case, Elizabeth Daniels was charged under ss 129(1)(b) and 136 of the Criminal Code. The effect of this is that she should not be called as a witness in any legal proceedings in connection with those offences ie offences under ss 129 and 136 of the Criminal Code.

14. We are therefore of the opinion that these grounds that relate to the application of s 14(1) of the Evidence Act have no merit and must fail.

Issue (ii): Did the trial judge fail to give proper effect to certain exhibits tendered into court?

15. Exculpatory documents. Paragraphs or grounds 3(a)(4), (5), (6), (7), (8), (9) and (10) of the notice of appeal deal with documents that were admitted into evidence, marked as exhibits and which the appellant submits were not given their proper weight and consideration. The various exhibits that the appellant’s counsel refers to are exhibits ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘I’ and ‘S’. These exhibits do not include medical evidence which we will consider later. His Honour refers to these exhibits as “exculpatory documents”. The circumstances under which the victim signed these exculpatory documents are referred to in the trial judge’s reasons under the part on undisputed facts which are set out at pages 110 to 115 of the trial judge’s decision on verdict and pages 3024 to 3028 of the appeal book. The trial judge also sets these documents out on a table at pages 114 and 115 of the decision on verdict and pages 3028 and 3029 of the appeal book. It is necessary that we set out this table to appreciate the trial judge’s reasons.

No	Date	Description	Exhibit	Comments
1	24.10.04	Statement to police: Olivia Daniels	S	This is the statement handed to First Constable Ariku of Madang police.
2	26.10.04	Letter: Daniels family/Hon James Yali	E	This is a letter of demand for K50,000.00, also signed by Helen, Brian and Oscar Daniels.
3	28.10.04	Affidavit: Olivia Daniels	F	This affidavit gives details of the alleged rape incident.
4	28.10.04	Letter: Daniels family/A/OIC, CID, Madang	H	This is a letter withdrawing the complaint against Hon James Yali; also signed by Helen, Brian and Oscar Daniels.
5	12.11.04	Letter: Olivia Daniels: Dep Commissioner Operations, Gari Baki	I	This is a letter withdrawing the complaint against James Yali.
6	Undated	Document entitled “My affidavit before my lawyer”	D	This document (now sworn or affirmed before a Commissioner for Oaths) retracts all rape allegations.
7	13.12.04	Affidavit: Olivia Daniels	G	This affidavit, which states that it has been sworn before A Amet Jr, Commissioner for Oaths, refutes the rape allegations.

16. The evidence shows that immediately after the rape, during the period 24.10.04 to 13.12.04, the victim signed seven documents, all done at the request of either the appellant or Elizabeth Daniels. The documents were drafted for her, taken to her, and she either rewrote them, as in exhibit ‘D’, or signed them in the presence of Elizabeth Daniels, the appellant or in some instances, others.

17. We set out the transcript of the evidence to demonstrate the circumstances under which these documents were signed. We then, later, set out the trial judge’s findings on this evidence. The first exhibit is:

18. The full text of exhibit ‘D’ is set out in ground 3(a)(4) of the notice of appeal. Did the trial judge not give any proper effect and consideration to that affidavit?

19. Exhibit ‘D’ is an undated handwritten document entitled “my affidavit before my lawyer”, wherein the victim stated that she was withdrawing charges against the appellant. The victim said she signed it at the Jais Aben Resort after she came back from Lae the second time.

20. The evidence in the transcript relating to Exhibit ‘D’ begins at p 204 to p 211 of the appeal book. It demonstrates that the circumstances under which the victim signed were that the document was drafted by somebody else and brought to her by the appellant’s representatives for her to sign. The letter was tendered into evidence without any objection from the State. It was tendered during cross-examination of the victim by the appellant’s lawyer. The relevant parts read:

MR SHEPPARD: Ms Daniels I am going to read out this document paragraph by paragraph. I am going to ask you a couple of questions about each paragraph. You just listen carefully. It begins, “I, Olivia Daniels, 17 years of age, swear under oath and say as follows. Honourable James Yali is the husband of my big sister named Elizabeth Daniels. Both my big sister Elizabeth and my brother Oscar Daniels Junior and I are residing in a three-bedroom house at the back of the Madang Butchery. I wish to retract or recant a statement I have signed which is being held by police.” Did you write that?

A: I wrote it but a copy was given to me at Jais Aben and I was told to write in my own handwriting [p 204 of appeal book] ...

MR SHEPPARD: Thank you, your Honour. The third paragraph of the statement says: “I signed the statement because I was picked up by constable Adam Yawing who threatened me and forced me to sign the statement.” Did you write that?

A: --- from a typed one from the computer which they brought to Jais Aben and told me to rewrite it in my handwriting.

A: Yes, they brought it to me and they told me to write it. I was by myself there without any of my relatives. It was Joe Paka, Mrs Angela Yali, they came but Angela Yali was outside and Joe Paka came in with Wilfred. They came in and they told me to rewrite this in my own handwriting. So they gave me those two pages of the writing pad and they told me to write it in my own handwriting.

A: This one, what they said, I was forced by Adam Yawing to go and sign this and threatened by him to go and sign it. It is not true.

A: It was my will. I got on the car that he brought. So we went down to the station and I signed it. [p 207 of appeal book]

Q: You see there is a paragraph that begins – it is the fifth paragraph. It begins: “My family and I wrote to the OIC CID dated 28 October 2004 and formally withdrew the complaint or statement.” My question is, did you write to the OIC CID dated 28 October 2004 formally withdrawing the complaint or statement?

A: I did not write any letter to withdraw this. The letter was brought to me when I was at my girlfriend’s house in Madang Tech and they told me to sign it so they can take it---

Q: The withdrawal letter. So you wrote a different letter as well as this withdrawing the complaint. Is that correct?

A: This statement number five, it is a withdrawal letter which my elder sister Elizabeth and Mum brought it over to me and Oscar in Madang Tech and they told us to sign this. But I did not write a withdrawal letter. It was typed on a computer, black and white, and they brought it over.

A: I was told by my sister to sign because she told me that if we did not stand with her and sign this paper something bad will happen to her. That is what she told me.

Q: Okay. And then you will see in the seventh paragraph, you have written. “I again wrote a letter to the Deputy Commissioner Operations Mr Gari Baki dated 12 November 2004. And in the letter I clearly stated that the allegation of rape of myself by Honourable James Yali was made up and false and that the complaint be withdrawn against Honourable James Yali.” Did you write the letter to Mr Baki?

Q: You signed the letter to Mr Gari Baki dated 12 November 2004 in which you stated that the allegation of rape of yourself by James Yali was made up and false, did you not?

A: I signed the paper which was already written and typed in a black and white paper and was taken to me and I signed it.

21. Further evidence on the circumstances under which the victim signed exhibit ‘D’ is set out in the victim’s re-examination by counsel for the State. He asked the victim the circumstances surrounding her signing Exhibit ‘D’. She replied that she was told to copy it in her handwriting from a typed computer printed version. She said that Joe Paka had told her to copy everything that is written in the other paper in her handwriting. He said to copy everything and not to miss out anything.

22. Mr Miviri asked her who Joe Paka was and she said that Joe Paka is the man who sometimes works in the Provincial Government in James Yali’s office and he lives with James Yali at the Kalibobo residence.

23. Asked how she knew that he worked with James Yali, she said that before the rape incident, when she would go with Elizabeth to James Yali’s office, that she would see him in the office sitting next to the Governor’s office. She said that he lives in a guest room in James Yali’s house. She said this document was signed at Jais Aben in a room booked for her by the appellant and that at that time she did not have a lawyer. She said at the time of signing, the people there were “James Yali’s people”. They were James Yali, Joe Paka, Wilfred and Angela. She said Angela was not in the room but was waiting outside. She said Angela is James Yali’s wife.

24. She said she was told to rewrite the document word for word and that at the time she was writing it, she knew that there were some parts that were lies (not true), for example the part where she said that Constable Adam Yawing forced her and threatened her to sign the statement (re exhibit S).

25. In fact, the victim maintained throughout in her evidence that although she signed the document, she only did so out of concern for her sister Elizabeth’s safety.

26. The victim’s evidence is clear that her sister took the document to her to sign and that if she did not sign it together with her brother Oscar, that something terrible would happen to her sister. The victim told the court that the contents of that document were not true but that she signed it out of fear and concern for the safety of her family members.

27. Also in that evidence referred to above, reference is made by both counsel to other exculpatory documents that were tendered into evidence. The victim gave the same evidence throughout, that someone else wrote these letters or affidavits and that she signed them only because her sister brought them to her and told her to sign them or something bad would happen to her.

28. As demonstrated in his summary, set out above, we find that the trial judge did consider and give proper effect to the circumstances under which exhibit ‘D’ was signed. He also did seriously consider the victim’s credibility as a witness.

30. This is a letter of demand dated 26^th October 2004 signed by Mrs Daniels, Mr Brian Daniels, Mr Daniels Jnr and the victim. The court heard from three of those signatories. The only one not to give evidence was Brian Daniels.

31. Ground 3 (a)(9) of the notice of appeal sets out the full body of that letter. The letter demands from the appellant, payment to the Daniels family immediately of K50,000.00 after which they will withdraw the complaint against him. In considering who drafted the letter of demand, his Honour noted that Elizabeth Daniels gave evidence as to the circumstances in which the letter was signed. The appellant’s evidence is that he knew nothing about the letter until it was given to him at his residence. His Honour concluded that he regarded Helen, Olivia and Oscar Daniels’ evidence as being truthful and that they were witnesses of truth. He expressed reservations about the appellant’s credibility. He also excluded Helen, Olivia and Oscar as being the authors of this letter.

32. Furthermore, on hearing all these witnesses, his Honour had reservations about accepting Elizabeth’s evidence that she had nothing to do with the letter. She said the letter was dated 26^th October 2004 and Elizabeth did not return to Madang until 1^st November 2004. His Honour concluded that a letter can be easily back-dated to make it appear that it was written some time earlier than it actually was. He did not exclude the possibility that Elizabeth was the author of that letter (see p 128 of decision on verdict and p 3042 of the appeal book).

33. In the transcript of evidence, the appellant’s counsel questioned the victim at length about the circumstances surrounding the signing of that letter, and who signed it. The appellant’s counsel read the contents of the letter to the victim, being letter to James Yali dated 26^th October 2004. Mr Sheppard read exhibit ‘E’ to the victim, then asked “That is what you wrote with your family to Mr Yali, is it not?” And the exchanges following thereafter is as follows:

A: Yes, I did sign because it was taken to me, but I did not write this.” [appeal book, p 211] ...

Q: The story about Mr Yali raping you is not true because it was made up to get K50,000.00 from him, was it not?

Q: I put it to you that it was a made-up story for no reason other than to try and get him to pay K50,000.00?

A: About this paper, I cannot answer any question because I was not there. This paper was taken to me to Madang Tech and I just signed it. So if – you can ask other witnesses, which is Elizabeth and my Mum. [appeal book, p 212] ...

A: As I have said, I would not know how he responded – how my mum and them responded because I was not there.

Q: Were you prepared to withdraw the allegation if Mr Yali paid you K50,000.00? You were prepared to withdraw the allegation, were you not, if he paid you K50,000.00 because that was the whole purpose of making the false allegation in the first place, was it not?

HIS HONOUR: You understand the question? You want Mr Sheppard to ask the question again?

MR SHEPPARD: Your act of intercourse with Mr Yali on 13 October 2004 was completely and utterly consensual, was it not?

Q: You see what Mr Pamba says here is, the girl – and he is quoting. He is quoting. I am going to ask you whether you said this. He says in quotes: “I state that I freely and willingly gave myself to Mr Yali and we had sex in his car which is tinted and air conditioned because were in a rush to return to my house, the girl claimed in her December 13 affidavit.” Did you tell Mr Pamba that?

Q: When you saw this story, did you contact The National and say, hang on a minute, I did not tell Kevin Pamba any of that stuff?

A: I was taken from here and hidden away in Lae and all those things came out on the paper.

34. Helen Daniels, the victim’s mother, who is also a signatory to that letter, explains in her evidence, the events that transpired and that eventually led to her signing that letter.

35. Helen Daniels was in Manus, in her village, M’Bunai, for a bride-price. Her daughter Elizabeth was also in Manus. Elizabeth went to town and telephoned the appellant because she had heard of the victim’s alleged rape by the appellant. She learnt certain things and returned.

36. A week later on 24^th October 2004 the appellant went to Manus to talk to the victim’s family members. He went there of his free will after he learnt the victim had reported the matter to the police. He was picked up at the Loniu bridge in Manus and was taken to the witness’s village. The appellant was in the company of Wilfred, his bodyguard. A police van with police personnel also accompanied the appellant. There were four of them.

37. The meeting took place at one Poliap’s house at M’Bunai village. The appellant requested this meeting with the victim’s mother and her family. The victim’s uncles and aunts were there also. They wanted to find out about the rape allegation. Everybody sat down and had some food. The appellant was the first to speak. He told the gathering that the allegation in Madang about him raping Olivia was not done by him but by some boys. After discussion, the family agreed that the victim’s mother and sister would return to Madang because Olivia had exams. They went to Lorengau in a hire car, driven by the appellant himself and checked into the Harbourside Hotel. The appellant booked two rooms. It was at that time that he learnt that Oscar Daniels had reported the matter to the police. Also, that evening the appellant bought beer for the victim’s uncles and for the policemen who were there with him.

38. When they arrived in Madang, a white Landcruiser Reg No MAC 989 was waiting for them. It was the appellant’s vehicle. The evidence is that the appellant and his staff, which included his drivers and security guards, were involved right throughout in transporting the victim and her witnesses.

39. Thereafter, a meeting was held at the Smugglers Inn, a meeting organized by the appellant. The appellant’s staff who were involved in that meeting were Michael Kasi, his first secretary, and his two drivers, Masbud and Emil. There were other men from the village, a man from Manam, a Church representative. Mr Yawing the policeman was also there. The appellant was not at the meeting. Michael Kasi told the gathering that the appellant had sent them to the meeting and that he had money to pay for his “wrongdoing or his shameful act” (appeal book p 336). Michael Kasi said further “James Yali is offering K10,000.00 to pay for his shameful action. And I have K5,000.00 with me at the moment ready to give to you. And the other payment of K5,000.00 will be given to you on a later date. That K5,000.00 will include a pig and some foodstuff.” Michael Kasi then said that James Yali will later pay K20,000.00 into Olivia’s account in compensation.

40. Witness Helen told the appellant’s representatives that she did not believe them because there was an incident earlier in Port Moresby where the appellant had attempted to attack the victim in a moving vehicle and the victim jumped off, sustaining injuries on the right side of her face and body. Then Michael Kasi said that it is not James Yali who will pay, it was him, that he was in charge of James Yali’s money. He said that they will pay because the incident in Moresby was not reported to the police. He said because of that James Yali did not give any money but that in relation to this incident he will give some money. But the witness Helen told them that she did not believe them. This was when Masbud responded saying “We are troublemakers, we are wrongdoers. What we have done is wrong so we will give to you any amount that you ask for as compensation.” (appeal book, p 336).

41. It was at that meeting that Masbud said that paying compensation was a tradition in Madang custom. He said that in their Madang custom if anyone does a shameful act, he pays for his wrongdoing. Because the appellant is married to the victim’s older sister and because the appellant did that wrong to his wife’s (Elizabeth) younger daughter, he must pay for his wrongful act (appeal book, p 338).

42. It was during those meetings that the appellant told the witnesses that “if I go down all of you will go down as well.” The witness, in this case Helen, understood this to mean that the appellant is a big man, is the
governor, and has money. He can use his money to pay men to go after her and her family and he has got a lot of men “that stick around” with him or stay with him (appeal book, p 354).

43. Helen Daniels said she refused to accept the K5,000.00, at the meeting. They did not reach a compromise at the meeting. On Sunday 31 October 2004, the witness Helen was at the bus stop when Michael Kasi and one other drove past. They gave Helen a lift and at the same time gave her an envelope. They told her there was money in there for food and bus fare. She did not open the envelope until later in the evening, and noted that the envelope contained K5,000.00.

44. Helen Daniels showed the money to her family. The victim refused to accept it, saying “money will finish tomorrow but the pain inside of me will last a lifetime.” She also said she wanted the matter to proceed to court and that justice must be done (appeal book, p 342).

45. The next day Elizabeth returned from Manus. The witness Helen distributed the money. The victim was given K100.00. Whilst there, Elizabeth produced the letter exhibit ‘H’, for them to sign. She told them that if they did not sign, the appellant would hurt the victim. The witness Helen signed because she had earlier witnessed Elizabeth being severely assaulted by the appellant, so out of fear and concern for Elizabeth’s life, she signed the letter.

46. Exhibit ‘H’, formally withdrawing the charges, was given to Sergeant Yalamu the next day, by Elizabeth.

47. After giving that letter to Sergeant Yalamu, the appellant, his wife Angela, Michael Kasi, Masbud and James Yali Junior rang and told Elizabeth to take her mother to the appellant’s house. There, the appellant gave them two letters. Helen saw that they were letters of demand. She saw that the letter requested payment of K50,000.00. She asked why that was so. Michael Kasi said they had come to give some money as compensation. He said as stated in that letter, they will give an advance payment of K25,000.00 and the balance to be paid later. Witness Helen refused to sign the letter, but Elizabeth insisted that it was for Helen’s safety and for Elizabeth’s wellbeing. That it was Helen’s life that was in danger. That was when Helen and Brian signed. Olivia and Oscar were not there, so Elizabeth left in the appellant’s vehicle to look for them to sign. Helen was asked to count the money in the presence of the appellant and others. It was exactly K25,000.00.

48. On 8^th November 2004, the appellant rang the witness and asked them all to go to his house. They did. He told them that he would send Olivia away and that “you should help me because if I go down all of you go down as well” (appeal book, p 353).

49. In his evidence, the appellant denied all allegations against him. He had his own story which he told the court, and he was also very evasive with his answers, by not answering directly or asking the State lawyers questions when asked.

50. His Honour did not accept the appellant’s evidence that he knew nothing about the letter. He was more inclined to conclude that the appellant knew “quite a bit” about the letter and that at the time it was signed, on or about Thursday 4^th November 2004, his associates and him, including probably Elizabeth, had decided that this was the most appropriate way to deal with the problem the appellant was then facing ie to get the victim to sign a letter demanding that the appellant pay her family some money and that she would withdraw the complaint against the appellant (see p 128 of decision on verdict and p 3042 of the appeal book).

51. We find that the learned trial judge did give proper consideration to that letter and as such there is no merit in this ground.

53. Exhibit ‘F’ is an affidavit which provides a version of the events of 13^th October 2004. It is the affidavit of the victim which states that on the morning of Wednesday 13^th October 2004 she saw the appellant at her house and he dropped her off at school. The appellant arrived at her house at about 8 pm for the first time, then he returned after about 15 minutes when she got into the back of his Toyota Landcruiser Utility. They drove some distance then eventually went to Madang Provincial Government Offices where the alleged rape took place, then he dropped her at home.

54. Exhibit ‘S’ is the undated statement of the victim but is crossed out in various places. This document was admitted into evidence during the oral testimony of Constable Jenny Ariku.

55. The grounds of appeal which affect exhibits ‘S’ and ‘F’ are grounds 3(a)(10), that exhibit ‘S’ is materially inconsistent with other statements made by the victim. The victim said she recognized the document and her signature was there. She said she used a black biro to make corrections (to exhibit ‘S’) and that before she went to the police station she had written out the statement herself. She said no one threatened her. She also said that because the police officer was a lady, that she was prepared to state exactly what happened.

56. Exhibit ‘F’ is the victim’s affidavit of 20^th October 2004 where she stated that the appellant had tarnished her bright future. Mr Sheppard asked if she was referring to the loss of her virginity and she replied yes. She said that she was not a virgin prior to the incident of 13^th October 2004 as the appellant had done the same thing to her twice before.

57. His Honour found that he did not consider it unexpected that when a young female is medically examined over an alleged rape incident that she would say that she would have been a virgin prior to the incident as that is what came out in evidence. His Honour found that he did not think defence counsel succeeded in establishing any clear and irreconcilable inconsistency in the victim’s version of events. Although it was put to her that she was saying things in her oral testimony that were not mentioned in her police affidavit (exhibit ‘F’) he found that such differences were unremarkable and were to be expected. He noted that the police affidavit was not drawn up by a lawyer and it would not be necessarily expected to be a complete record of the victim’s version of events. His Honour found that although defence counsel’s suggestion that the complainant had produced a statement to the police in the early days of the investigation (exhibit ‘F’) that was completely at odds with her later version of events, was compelling, he accepted the victim’s evidence that she wrote out the statement thinking that it was going to be handed to a male police officer. But when she was interviewed by First Constable Ariku, a female police officer, she felt more comfortable and willing to give details as to what actually happened. The trial judge considered this to be a credible explanation for the document being changed substantially, ie exhibit ‘S’. (see p 117 of decision on verdict and appeal book, p 3031).

58. We note also that neither counsel made submissions on inconsistent statements made by witnesses and how much weight is to be given by the trial judge. Furthermore, we find that the trial judge gave proper consideration to the statements that were handed up at trial, in this case exhibits ‘F’ and ‘S’, and provided an explanation for them.

59. We therefore cannot find any merit in this ground of appeal, so also dismiss it.

60. The ground of appeal relating to this exhibit is at paragraph 3(a)(6) of the notice of appeal. There the appellant alleges that the trial judge erred in failing to give proper effect to the victim’s sworn affidavit dated 13^th December 2005 where she deposed to the effect of the appellant raping her was fabricated and not true and that she wished to deny and withdraw those allegations. This affidavit was allegedly sworn in the presence of Arnold Amet Jnr one day before the accused’s interview by the police. The victim said the document was taken to her when she was at Kauris and that Arnold Amet Jnr was not there to swear the affidavit. It was taken there by Elizabeth, Alois Kingsley and the appellant. The appellant was shown this affidavit during trial, but he denied taking the affidavit with the two others to Kauris.

61. After assessing all the evidence, including exhibit ‘G’, the trial judge concluded, given the assessment he made in relation to the overall credibility of the victim’s evidence, that she signed this exculpatory document because she was asked or told to or that her sister Elizabeth insisted. This was because the evidence she gave as to the places and the times at which she signed the exculpatory documents were consistent. It tied in with the sequence of events forming part of the uncontested facts found by the judge. The trial judge’s conclusions in relation to this document are also set out above and can be found at p 130 of his decision on verdict and p 3044 of the appeal book.

63. This is referred to in ground 3(a)(7) of the notice of appeal. In that ground, the appellant pleads that the trial judge erred in law in failing to give any proper effect to a letter dated 28^th October 2004, signed by the complainant, (exhibit ‘H’), which speaks of a withdrawal of the complaint against the appellant. The full text of this letter is set out in ground 3(a)(7) of the notice of appeal.

64. This letter was delivered to the OIC of the Madang CID on 6^th November 2004 by Helen and Elizabeth Daniels.

65. Again, we refer to the trial judge’s reasons at p 130 of his decision on verdict and p 3044 of the appeal book, that the victim was in difficult and stressful circumstances in the period from the date of the incident 13^th October to the 13^th December 2004; that the victim was aware that money had changed hands and that she was obviously aware that the allegations against the appellant were very serious and that there was a lot at stake for him. She was under pressure from her sister Elizabeth to sign documents and Elizabeth was willing to go along with the plan for there to be an exchange of money.

67. Reference to this exhibit is at ground 3(a)(8) of the notice of appeal. It states that the trial judge erred in law in failing to give any proper effect to the letter dated 12^th November 2004, signed by the victim, where she wrote to Deputy Commissioner Baki seeking a withdrawal of the complaint against the appellant. The full text of this letter is set out in that ground of appeal.

68. The appellant denied any knowledge about the content of the letter. The victim said she was in Lae when Michael Kasi and others brought the letter to her to sign.

69. Again we repeat the trial judge’s comments at p 129 of the decision on verdict and p 3043 of the appeal book, that the victim signed the document because she was asked or told to or that her sister Elizabeth insisted. The evidence she gave as to the places and times she signed the documents are consistent and tie in with the sequence of events forming part of the uncontested facts. The trial judge was satisfied that the appellant gave a truthful account of the circumstances in which she signed the various documents.

70. His Honour’s summation of his review of the evidence in relation to the circumstances under which the victim signed the exculpatory document is set out at p 130 of the decision on verdict and p 3044 of the appeal book. Our review of the evidence from all State witnesses which includes Oscar Daniels, Helen Daniels and Elizabeth Daniels, all lead to a scenario where Elizabeth was the conduit between the appellant and the victim. Elizabeth delivered letters and affidavits already prepared, for the victim to either sign or rewrite in her handwriting, then sign. It is apparent from the evidence, that Elizabeth used her influence as a family member, and relying on the beatings she received in the past from the appellant and his very violent nature, her family members including the victim did as she asked them to.

71. And what of the appellant’s evidence? The appellant denies the allegations of rape. He also maintains that he did not have anything to do with the drafting of the exculpatory documents nor did he threaten the victim’s family members. He said they themselves collaborated amongst themselves to blackmail him. And he is the only one who gave evidence in support of his case. Against him are several witnesses called by the victim which included policemen, the victim’s family members and medical doctors.

72. The appellant maintained that the evidence before the trial court both documentary and oral, shows that there was extortion and blackmail by the victim’s family members and herself. The trial judge fully considered all those issues within the context of the evidence that was before him. The exchange between the appellant’s counsel and the victim in relation to the K50,000.00 is set out below:

Q: There are three documents that you have signed so far in which you withdraw the charges or seek to say that the charges are false, three documents.

A: I signed the three documents because my sister took it over to me and they told me and Oscar that if I do not cooperate with her and sign any of these, something terrible will happen to her.

Q: You see the point is, how can we believe a word you say if you sign anything that is put in front of you? How can we believe anything you say? The allegation made against Mr Yali was to extort K50,000.00 was it not? You wanted to get K50,000.00 off Mr Yali?

Q: Well let me help you by showing you a copy of the document that you signed – let me show you a copy of that document. Can I have the original back? I do have the original if you need it. Down in the bottom right-hand corner under the name Ms Olivia Daniels, is that your signature?

Q: And so you have signed the letter – well, it is your letter. You signed that letter. I tender it. And I tender the original... [appeal book, p 210]

73. Having reviewed all the evidence in relation to the circumstances under which the exculpatory documents were signed by the victim and her family members, we accept the trial judge’s findings that she has adequately and succinctly explained how she came to sign the documents. We accept that the victim was in a difficult and stressful set of circumstances in the period from the date of the incident, 13^th October 2004, to the date of the last document, 13^th December 2004. We accept that the victim may have been aware that money had changed hands. She was obviously aware that the allegations against the appellant were very serious and that there was a lot at stake for him. She was under pressure from her sister Elizabeth to sign documents. It appears that, at that stage of events, Elizabeth was willing to go along with the plan for there to be an exchange of money. We do not disturb the trial judge’s findings that there was no evidence of extortion or blackmail. We also accept the trial judge’s findings that the victim gave a truthful account of the circumstances in which she signed the various exculpatory documents.

74. We find that the trial judge did give proper consideration and effect to the tendered exhibits, as discussed above.

Issue (iii): Should the trial judge have held and directed himself that it was unsafe to find the accused guilty in the absence of corroboration?

75. The grounds of appeal in relation to corroboration are set out at ground 3(a) (11) and 3(b)(3) of the notice of appeal.

76. In relation to corroboration, the trial judge correctly pointed out that prior to 2003, the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. This was because rape is a serious charge, easy to allege and difficult to refute. But this was changed by the amendments to the Criminal Code made by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The trial judge referred to s 352A of the Criminal Code, which states:

On a charge of an offence against any provision of this Division, [Division V. 7, sexual offences and abduction] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [our emphasis])

77. The appellant’s lawyer submits that the requirement of the general law in acting on uncorroborated evidence of alleged victims of sexual offences is to give a warning whenever necessary to avoid a miscarriage of justice arising from circumstances of the case.

78. The appellant was charged with various offences, to which s 229H (corroboration not required) of the Criminal Code applies. It is in exactly the same terms as s 352A. We accept that s 352A applies to the one count of rape that the appellant was found guilty of.

79. Under s 352A of the Criminal Code, the trial judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration. The trial judge also need not have held and directed himself that corroboration is a relevant consideration. However notwithstanding, the trial judge did go to extreme lengths to discuss the aspect of corroboration and the relevant evidence supporting corroboration. This is found at pages 108, 109 and 110 of the decision on verdict and pages 3022, 3023 and 3024 of the appeal book.

Issue (iv): Was the medical evidence before the court such that it would have created a reasonable doubt in the trial judge’s mind that the act of sexual intercourse between the appellant and the victim was not consensual?

81. The relevant grounds of appeal in relation to this issue are at paragraph 3(a)(12) and (21) of the notice of appeal. There, the appellant pleads that the trial judge erred because he failed to give proper effect to Dr Geita’s evidence and that the medical evidence could not have corroborated rape.

82. The evidence before the court on the victim’s medical examination are the affidavits of Dr Monica Clement and Dr Lahui Geita and their oral evidence. These are both marked as annexures ‘P’ and ‘Q’.

83. The trial judge reviewed this evidence at pages 63 to 67 of the decision on verdict and pages 977 to 981 of the appeal book.

84. Dr Geita’s evidence referred to in ground of appeal 3(a)(12), was raised by Mr Sheppard for the appellant when he cross-examined Dr Geita. This is referred to by the trial judge at page 66 of the decision on verdict and page 980 of the appeal book. The evidence of both doctors was that their findings were consistent with recent sexual intercourse (of the victim) where vaginal penetration and ejaculation occurred. Both doctors depose to this in their respective affidavits.

85. In his review on the credibility of evidence by witnesses and under his analysis on evidence given by way of oral evidence, the trial judge discussed the evidence of Dr Clement and Dr Geita. The trial judge said that Dr Clement gave significant oral evidence about redness in the victim’s vagina, additional to the details she recorded in the sexual assault medical examination report and in her affidavit. His Honour found that her evidence was unaffected by cross-examination and regarded her as a credible witness. He also regarded Dr Geita as a credible witness (page 120 of decision on verdict and page 3034 of the appeal book).

86. His Honour then sets out his findings under the part “What did the medical evidence reveal?”. His Honour found that the documentary medical evidence considered alone was largely inconclusive as to whether intercourse was consensual or otherwise. But he said that it was conclusive in that it proved that sexual intercourse did take place.

87. In her evidence, and confirmed by both doctors, the victim was very distressed when she went in for the examination. She also did not want Dr Geita, a male doctor, to examine her. Dr Geita had to leave the room after which Dr Clement then examined the victim on her own. It was on that basis that the trial judge relied very much on Dr Clement’s opinion and her oral evidence that this was a case of sexual assault. In light of observations she (Dr Clement) made about the victim’s condition, both physical and emotional, her opinion was that it appeared to have been a case of forced entry of the victim’s vagina by a penis, given the victim’s behaviour and condition. It was on that basis that his Honour found on the medical evidence, relying on Dr Clement’s evidence, that intercourse that occurred was non-consensual (page 127 of the decision on verdict and page 3041 of the appeal book).

88. We find that the trial judge did give proper consideration and effect to Dr Geita’s evidence.

90. In relation to ground 3(a)(21), we find this ground is not made out, in light of our findings on ground 3(a)(12). This is also in view of the extensive discussions by the trial judge in relation to the medical evidence and the careful deliberations his Honour made in relation to that evidence.

Issue (v): Did the trial judge properly consider all witnesses’ evidence including the victim’s evidence?

91. Grounds of appeal relating to this issue are 3(a)(13), (14), (15), (16), (17), (18), (19), (20), (22), (23) and (24) and 3(b)(3), (5) and (6) of the notice of appeal.

92. These grounds all relate to the manner in which the evidence was received and analysed by the trial judge.

93. In relation to ground 3(a)(13), we have already dealt with the acceptance by the trial court of the exculpatory documents and found that the trial judge did not err in that respect.

95. As to ground 3(a)(14), we note on review of his Honour’s decision on verdict that there is extensive discussion on this under the part “Did the complainant consent to sexual intercourse with the accused?” This is found at p 133 of the decision on verdict and pages 3047 to 3050 of the appeal book. The trial judge carefully and extensively discussed the evidence and the law on consent and found at the end of it all that he was satisfied beyond reasonable doubt that the complainant or the victim did not give free and voluntary consent to be sexually penetrated by the appellant. He concluded that the victim did not consent.

96. The trial judge did direct himself that he needed to establish guilt beyond reasonable doubt, which he did, and was so satisfied.

98. In relation to grounds 3(a)(15), (16), (17), (18), (19), (20), (22), (23), (24), (25), (26), (27), (28) and (29), again, his Honour discussed extensively the evidence under various headings from pages 110 to 141 of the decision on verdict. All points of law and aspects of evidence mentioned in these grounds of appeal were discussed. He did so under the following headings.

ii. “Contentious factual issues relating indirectly to the elements of the offences”

His Honour discussed the evidence relating to the above, as it transpired before him. They are discussed under the following subheadings:

100. As to ground 3(a)(15), the trial judge accepts that the matter was not brought to the attention of the police until ten days after the incident when the victim’s brother spoke to a policeman. The trial judge accepts that the victim’s brother reported the matter after ten days because he was frightened of reprisals from the appellant, considering he was a “big man”, and so he was worried about the consequences of him reporting the matter to the police. His Honour accepted the victim’s brother’s explanation in view of the finding he already made earlier that he was a witness of truth.

101. In relation to ground 3(a)(16), the “manifest inconsistency” referred to in this ground is in relation to the exculpatory documents that were tendered into evidence. His Honour has provided his reasons for accepting this evidence which was referred to at page 130 of the decision on verdict and page 3044 of the appeal book.

103. As to ground 3(a)(17), did the trial judge fail to give proper effect to the finding that there was no evidence of damage to the complainant’s clothes at the time of the alleged rape?

104. The trial judge discusses this at page 136 of the decision on verdict and page 3050 of the appeal book. His Honour said this:

Were there any other tell-tale signs of rape, such as damaged clothing? The defence counsel rightly highlighted the State’s failure to tender the clothes the complainant was wearing and had stripped from her during the incident. It was certainly desirable for that evidence to have been produced. But it is not a necessary requirement. I draw no inference adverse to the State’s case due to the failure to adduce that evidence.

105. His Honour then went further to say this, which we have already referred to above:

As to what happened after the incident – the movement of the complainant to Lae on two separate occasions, the signing of various exculpatory documents by the complainant, the letter of demand, meetings between the complainant’s family and representatives of the accused and the accused himself at one stage, a receipt of two cash sums totalling K30,000.00 by the complainant’s mother – this can be interpreted in different ways. I have already rejected the argument that the complainant and her mother and brothers were responsible for blackmailing the accused. It is more likely that all these things were done at the behest of the accused, and probably Elizabeth Daniels, in an attempt to stop the police investigation in its tracks and to compensate the complainant’s family for what he did to the complainant. In the final analysis I consider that all of that evidence supports the conclusion that what the accused did amounted to rape, forced sex, without consent.

106. His Honour considered this aspect of the evidence together with other aspects to establish a finding beyond reasonable doubt of the appellant’s guilt.

108. Ground 3(a)(18) also fails in light of the above reasoning as it all relates to evidence on clothing, which we have already dealt with.

109. We deal with grounds 3(a)(19) and (20) together as they relate to evidence on whether the victim had the opportunity to leave the appellant after he picked her up at the house.

110. Did the trial judge err when he failed to give effect to the finding that there were physical opportunities for the victim to leave the appellant and that she did not leave? And considering those opportunities, whether the prosecution did establish guilt beyond reasonable doubt?

111. The court’s findings on this is at page 125 of the decision on verdict and page 3039 of the appeal book. His Honour said that he was satisfied that there was a physical opportunity for the victim to leave the appellant at that time. He said further at page 124 of the decision on verdict and page 3038 of the appeal book, that most of those were not, in his Honour’s assessment, physical opportunities for the victim to do anything other than to go along. But he was of the view that two occasions presented themselves to the victim to run away, at the Smugglers Inn and at the Provincial Government offices. In relation to these instances, the court made the finding that there was physical opportunity for the victim to leave the appellant. But did the trial judge fail to give proper effect to that evidence? We find the trial judge did not fail to do that. In fact the trial judge did quite the opposite. The trial judge considered all evidence in relation to the fact that the victim could have left the appellant but did not. And we find, as did the trial judge, that it (on its own) does not go towards establishing or not, the appellant’s guilt beyond reasonable doubt.

113. As to grounds 3(a)(22) and (23), these relate to the letters that were tendered into evidence that were allegedly signed by various persons. In these grounds of appeal, the appellant prays that the court find that the trial judge had erred by placing reliance on the evidence of Oscar Daniels when there was already correspondence before the court showing his demand for K50,000.00 together with others for withdrawal of the complaint.

114. The appellant also prays to the court for orders that this court find that the trial judge erred when he placed reliance on the evidence of Helen Daniels, considering the various exculpatory documents she had signed, which were in evidence before the court. His Honour deals with the letter of demand which is exhibit ‘E’ at page 128 of the decision on verdict and page 3042 of the appeal book. His Honour had earlier concluded that he regarded Helen Daniels, the victim and Oscar Junior as witnesses of truth. It was then that he excluded Helen Daniels, the victim and Oscar as being the authors of that letter. He said he had reservations about accepting Elizabeth’s evidence that she had nothing to do with the letter. He said he does not exclude the possibility that Elizabeth Daniels was the author of the letter. He also found that the appellant knew quite a bit about the letter and that at the time it was signed, he and his associates, and probably Elizabeth, had decided that this was the most appropriate way to deal with the problem he was then facing, ie for the victim to withdraw the complaint upon the appellant paying the victim’s family K50,000.00.

115. In relation to Helen Daniels, his Honour discussed this at page 130 of the decision on verdict and page 3044 of the appeal book under the part “Was the accused blackmailed?” His Honour said that he was not satisfied that the appellant was trying to bribe potential State witnesses but was inclined to the view that what happened was an attempt to make it appear that there was a blackmail, when really what was happening was the implementation of a plan to make a substantial payment of money, to get the complainant (victim) and her family to drop the case. He rejected the submission by defence counsel that this was blackmail and extortion by the victim and her family.

116. Relying on that and on other points canvassed above regarding the ‘exculpatory documents’ which these letters are, his Honour did not place much weight on these letters.

118. As to ground 3(a)(24) of the notice of appeal, we ask ourselves whether the fact that the victim changed her story from what was stated in her statement to the police to her verbal evidence is of any consequence? That in fact depends very much on what the trial judge saw. This is discussed at page 116 of the trial judge’s decision on verdict and pages 3030 to 3033 of the appeal book. His Honour said this:

Mr Sheppard highlighted the fact that the complainant quickly changed her evidence that she was a virgin before the incident of 13^th October 2004 as soon as she realized the consequences of her evidence. That evidence was given when Mr Sheppard was cross-examining the complainant about her affidavit of 28^th October 2004 (exhibit ‘F’) in which she stated that James Yali had tarnished her bright future. Mr Sheppard asked if she was referring to the loss of her virginity and she replied yes. Then she said that, in fact, she was not a virgin prior to the incident of 13^th October 2004 as the accused had done the same thing to her twice before. Having carefully considered this exchange, and looked at the affidavit of the complainant, there is an interpretation available other than that contended by Mr Sheppard. Her affidavit did not state expressly that she was a virgin prior to 13^th October 2004. Mr Sheppard’s first question was cast in general terms. So I do not think that she did, in fact, change her evidence on the spur of the moment. However, even if she did, the court must take into account the fact that she is a young woman who was in open court being asked very probing questions about her sexual conduct. It is also true that when she reported to Modilon Hospital the day after the incident she stated that she was a virgin. I do not think much flows from this. It is, I consider, not unexpected that when a female is medically examined over an alleged rape incident that she would say that she had been a virgin prior to the incident.

I do not think the defence counsel succeeded in establishing clear and irreconcilable inconsistencies in the complainant’s version of events. It was put to her that she was saying things in her oral testimony that were not mentioned in her police affidavit (exhibit ‘F’). I thought that such differences were unremarkable and to be expected. It appears that the police affidavit was not drawn up by a lawyer and it would not be necessarily expected to be a complete record of the complainant’s version of events.

Mr Sheppard’s suggestion that the complainant had produced a statement to the police in the early days of the investigation (exhibit ‘S’) that was completely at odds with her later version of events – thereby supporting the concoction submission - is not one that I found compelling. The complainant said that she wrote out the statement thinking that it was going to be handed to a male police officer. When she was interviewed by First Constable Ariku (witness No 15), she felt more comfortable and willing to give details as to what actually happened. I consider this to be a rational explanation for the document being changed substantially.

119. We find the trial judge did give proper consideration and effect to the victim’s evidence and that he did properly weigh all materials before him including submissions by defence counsel, on this aspect.

121. As to ground 3(a)(25), we find these are questions that the court would ask in any trial. We do not see how such a question directed towards the appellant or any accused would affect the trial judge’s ability to properly consider the evidence before him. This ground does not have any merit and must also fail.

122. As to ground 3(a)(26), did the learned trial judge fail to give any effect to the victim’s refusal and failure to answer questions and if so, did he err?

123. The trial judge dealt with this at page 118 of the decision on verdict and page 3032 of the appeal book. He said this:

I took into account the fact that at least during the early part of her giving evidence in chief and cross-examination there were long pauses between the questions and the answers. There were some questions that the complainant did not answer. On a number of occasions I had to ask whether she understood the question and whether she proposed to answer it. However, at the end of the process of her giving evidence I did not draw any adverse conclusion as to her credibility arising from the way she gave her evidence. I do not mean to suggest that the court should believe everything that she said. Nor do I propose to ignore inconsistencies in her evidence. However, it is important for the court to form an opinion on the overall credibility of the complainant’s evidence. Therefore I state that, in particular having regard to her demeanour in the witness box, I regard the complainant as a credible witness.

124. And the courts have found this to be so in many cases. For instance in the National Court in The State v Thomas Madi (2004) N2619 Sevua J said this of the victim’s demeanour in the witness box, in relation to the victim’s hesitancy in answering questions and long pauses:

I observed her (the victim) to be a witness of truth, soft spoken and quiet, perhaps because she was not comfortable telling a judge, lawyers and a packed courtroom what the accused did to her. And this was quite evident when she had to pause for long periods of time and looked shamefully down before answering questions from the prosecuting counsel leading her in examination-in-chief.

125. We find that the learned trial judge did give proper consideration and effect to the manner in which the witness answered questions. After an overall consideration of her evidence and assessment of her demeanour, the trial judge found her to be a credible witness.

127. As to grounds 3(a)(27) and 3(a)(28), we have already discussed this above. These grounds must also fail.

128. In relation to ground 3(a)(29), the appellant asks that this court find that the trial judge erred in failing to find that the victim had falsely alleged that she had been threatened by Constable Yawing and forced by him to sign the statement and thereafter, failing to give any proper effect to this finding.

129. It is necessary that we refer firstly to the trial judge’s decision on verdict. In relation to Constable Adam Yawing, he was witness No 6. The trial judge referred to his evidence at page 119 of the decision on verdict and page 3033 of the appeal book as “he was the police officer who first received the complaint from Oscar and Olivia. I regard First Constable Yawing as a witness of truth.”

130. In her evidence, the victim was shown exhibit ‘F’ which is her affidavit giving details of the alleged rape incident, dated 28^th October 2004. During Mr Sheppard’s cross-examination of the victim, he said the following and this was when reference was made to First Constable Adam Yawing:

Q: I think I can retract. Were you permitted to read the document before signing it?

Q: Was it a case that you were put under pressure, threat and intimidation from one Adam Yawing?

Q: Was it a case that you were put under pressure to sign that document by Adam Yawing; pressure, threat and intimidation from Constable Adam Yawing?

A: After the incident Oscar took me and left me at my aunty’s place and came back in the night down at Kina beach. He came back, picked me up and then we went to Kusbau. At Kusbau we rang Annette Kora. We rang Annette Kora and she said that I was going to Lae because we were scared of James Yali and his people. So she arranged for me to go to Lae. So I left and I was in Lae and Oscar caught up with Adam Yawing and he told him that this and this happened and Olivia left. So when I came back I went to see him.

A: I came back and I was in Madang Tech with June. So in the afternoon Oscar went and told Adam Yawing that I am already in Madang. So he came down at Madang Tech and then met up with me and he asked me and I told him.

131. We note that this ground of appeal is in reference to exhibit ‘D’ which is the victim’s handwritten affidavit where she states that Adam Yawing threatened and forced her to sign the statement. However, the trial judge did refer to and consider this at page 130 of his decision on verdict and page 3044 of the appeal book. This is his summation on the exculpatory documents, which we have set out in full, where the trial judge after having considered the circumstances under which the victim signed all these documents, said that he found that the victim was in a difficult and stressful situation during that period of time. The court formed the view that the victim had adequately and truthfully explained how she came to sign this document.

132. The transcript of evidence that we have set out above also shows that this question was not put to the witness by the appellant’s lawyer. But it does not make much difference because the trial judge did consider that and did give effect to this finding. This ground must also fail.

133. Ground 3 (b)(1)(2) relate to s 14 of the Evidence Act. We have already discussed that and have found that the trial judge was correct in his reasoning and conclusion.

134. As to the remainder of the grounds under paragraph 3(b) of the notice of appeal, we have already found the trial judge to be correct in his reasons and so dismiss the remainder of those grounds.

Issue No (vi): If there were inconsistencies in the victim’s evidence, should the court then have found that the charges against the appellant had not been proven beyond reasonable doubt?

135. We have reviewed the evidence before the court and found that the trial judge considered the victim’s evidence and was satisfied beyond reasonable doubt of the charge on which the appellant was convicted.

Issue No (vii): Did the trial judge err in his findings on the evidence in relation to the victim’s clothing, that the victim was a virgin immediately prior to the alleged rape, and the victim generally refused to answer questions put to her by defence counsel which were not objected to?

136. We have already dealt with this and found the trial judge to be correct in the manner in which he dealt with the witness.

Issue No (viii): Generally, whether the issue of consent was properly proven beyond reasonable doubt?

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but [are] not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

138. As to whether the victim consented or not revolves around several factors which the trial judge discussed in his reasons at pages 87 to 94 and 133 to 138 of the decision on verdict. His Honour cited Holman v the Queen [1970] WAR 2, a decision of the Court of Criminal Appeal of Western Australia where the court held:

A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful. But if she consciously permits it, providing her permission is not obtained by force, threat, fear or fraud, it is not rape.

139. His Honour also considered Black v Corkery (1988) 33 ACR 134 where Young J said:

The mere fact that pressure is put on the person consenting is not of itself sufficient to invalidate the consent or to make it other than a voluntary choice. ... A reluctant consent or a grudging consent is nonetheless a consent. ... However, pressure may get to such a degree that the act will lose its voluntariness.

140. Defence counsel submitted that there was consent because there was lack of trauma, the victim did not produce damaged or torn clothes, there was lack of recent complaint, there was inconsistency in the victim’s evidence, the witness’s demeanour in the witness box was breathtaking in terms of its dishonesty, the victim’s failure to run away, the victim’s involvement in blackmail, and the improper investigation by the police. The State made submissions in response, which defence counsel responded to.

141. The trial judge then considered all the submissions in their totality and found that indeed there was lack of consent. The evidence upon which the court found that there was forced sexual penetration was that although the appellant did not use aggravated violence against the victim, the court did find that a reasonable degree of force was used by the appellant. That he forced the victim into his office then forced her onto the floor or sofa then he locked her legs with his legs then forced himself on top of her. The trial judge drew the inference from the evidence that the victim submitted to being sexually penetrated as there was nothing else she could do. She was overpowered by a physically stronger person. The trial judge found that this fact falls within s 347A(2)(a) of the Criminal Code, that a person does not consent if she submits to penetration because of the use of force on her.

142. We have already ruled that we found the trial judge properly considered all the evidence that was before him. The trial judge was in a position to do that as the Court was a tribunal of fact.

143. The court was also faced with allegations of extortion and blackmail by the victim and her family. The only evidence from the appellant is from the appellant himself. He denied all allegations that were put to him and maintained throughout that he did not threaten the victim either through himself or his counterparts, to sign the letters. But the most important issue and which both counsel in the lower court agree with, is the issue of consent. Did the victim consent to the act of sexual intercourse?

144. Firstly as to the surrounding circumstances on the night of the incident, there were two persons standing close by at the victim’s home that night, Johnson and Mano. Johnson said that he heard that Mr Yali insisted. The defence contended at trial that the victim had a choice. If she did not want to get into the car all she could have done was lock the gate and lock the house or she could have called for help. But she did neither. This court, including the trial court, were placed in a position where a young girl was with an assailant, a man much older than her, a very powerful man in the province, at that time the Governor of the province, who had in his capacity at that time, the independent will to do anything. He could pay off the victim’s family as a way of withdrawing the complaint, which on the evidence he did do. The further evidence we have before us is that of the victim who said that the appellant had non-consensual sex with her previously.

145. But again, going back to the issue of consent, sexual intercourse did take place between the victim and the appellant. There was a penetration of the vagina and his Honour the trial judge carefully considered the medical evidence.

146. In relation to the medical evidence, Dr Monica Clement, the doctor who examined the victim, said in her evidence that when the victim first came in to see her she was crying, she was in tears, her eyes were red and puffy, she was hunched, her head was hanging down and she could not look at her eye to eye when the doctor greeted her. The victim came to her a day after the alleged rape. The doctor noticed when examining her vagina that it was full of semen. There was no hymen but the vaginal wall was red. The cervix was red.

147. Although the appellant’s lawyer wanted the trial court to believe that the redness in the victim’s vagina was a result of some vaginal infection, the examining doctor concluded that when the patient presented herself to her, it was not as a normal outpatient case complaint of rashes or itchiness in the vagina for the doctor to then conclude that there was a chemical imbalance causing the redness in the vagina. Dr Clement also concluded that the patient must have undergone trauma and that trauma would have been forced penile penetration where the female was not ready for the sexual act to occur.

148. Dr Lahui Geita also said that the victim came in very distressed, she was crying, and her eyes were red and puffy. He said that because the victim was upset, she did not want him there when Dr Clement conducted the genital examination. Dr Geita also confirmed that he did not examine the victim’s genitalia.

149. We find that the trial judge was indeed very thorough in his reasoning in relation to the issue of consent and found that the victim did not consent.

151. As this is an appeal against conviction, the appellant is obliged to show an identifiable error to allow interference with the trial judge’s findings. We find he has not done that. In Vaii Rocky Maury v The State (2001) SC668 the Supreme Court (Injia, Sawong and Kandakasi JJ) held, relying on Ian Napoleon Setep v The State (2001) SC666 at page 7:

It is settled law that, this court will not readily interfere with the trial court’s findings unless it is satisfied that the learned trial judge fell into some demonstrable error which has the effect of vitiating the trial judge’s discretion.

152. In the present case, the appellant has not demonstrated any error warranting this Court’s interference with the learned trial judge’s judgment and reasons for judgment.

153. We accordingly dismiss the appellant’s appeal and uphold the conviction of the National Court.

2. The conviction of the National Court is upheld.
_________________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent

Supreme Court of Papua New Guinea

Yali v State [2007] PGSC 57; SC971 (10 August 2007)