Jelis v State [2012] PGSC 26; SC1184 (29 June 2012)

SC1184

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 66 OF 2010

OBED JELIS

Appellant

-V-

THE STATE
Respondent

Kokopo: Batari J Mogish J Kassman J
2012: 26, 29 June

CRIMINAL LAW – appeal - conviction – alternative counts of rape and sexual penetration charged on same indictment - appellant convicted on alternative count of sexual penetration of child under 16 years - Criminal Code s. 347 & s. 229A (1) (2) – evidence – age of victim – proof of – victim over 16 years at time of offence – whether conviction lawful – alternative verdict – abuse of trust, authority or dependency – Criminal Code s. 229E –offence not on indictment - Power of Supreme Court – Supreme Court Act s. 22,23,27 - offence not available as alternative verdict under Criminal Code s. 541. - Appeal upheld and conviction quashed.

Facts

The appellant was indicted on one count of rape and in the alternative, sexual penetration of a child under 16 years. He denied the alternate counts and evidence was given on both sides. The Trial judge disbelieved the accused in his defence and convicted him on the alternative verdict of sexual penetration of a child under the age of 16 years. He appealed against his conviction only.

The issue inter alia, is whether the conviction is, in all the circumstances, lawful as a matter of law and safe and satisfactory under s 23 (1) of the Supreme Court Act.

Held:

(1) Strict proof of the complainant's age is required where the elements of the charge include the age of the complainant.

(2) There was evidence the complainant was over the age of 16 years and hence the trial Judge erred in law in convicting the appellant of sexual penetration of a girl under the age of 16 years.

(3) There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence: The State v Kikia Solowet (2007) N3154; The State v Samuel Kawar (2011) N4234 considered and approved.

(4) The offences of sexual penetration (s. 229A), sexual touching (s.229B), indecent act directed at a child (s.229C), persistent sexual abuse of a child (s. 229D), and abuse of trust, authority or dependency (s. 229E) are not available as alternative verdicts unless specified on the indictment;

(5) Recommended that the Parliament enact an amendment to allow the court to enter a conviction for a lesser offence where all the elements of a more serious offence have not been proven.

Appeal upheld, conviction quashed.

Cases Cited:

Papua New Guinea Cases:

Denden Tom, Daniel Wilson & Samuel Tom v The State (2008) SC967
John Beng v The State [1977] PNGLR 115
Tapopwa Thomas v The State [1979] PNGLR 140
The State v Peter Joseph Haydon [1976] PNGLR 509
The State v Samuel Kawar ( 2011) N4234
The State v Kikia Solowet (2007) N3154

Overseas cases

Edwards v Noble (1971) 45 A.L.J.R. 628.18

Counsel
Appellant In-Person
T. Rutledge, for the Respondent

29 June, 2012

1. BY THE COURT: This is an appeal against a conviction of the appellant at the October sittings 2010 of the National Court at Kokopo.
   
2. The appellant was indicted that on a date unknown, between January 2008 and December 2009, he committed rape upon one, E.C.
   
3. He was charged in the alternative on the same indictment that, on a date unknown, between January 2008 and December 2009, he sexually penetrated the said E.C., a child under the age of sixteen years. And that the said E.C. was in a relationship of trust, authority or dependency with the appellant.
   
4. The appellant was arraigned on both counts. He pleaded not guilty to the rape count and the matter proceeded to trial on that charge. The court found him guilty on the alternative count and was sentenced to 19 years in hard labour.
   

Grounds of Appeal

5. The first ground of appeal worded, "Appeal against decision" is far too general and lacks particularity. Except for what is apparent on the face of the records, such shoddy and ambiguous ground invites summary dismissal of the appeal for being incompetent. We will return to this ground later.
   
6. The second ground of appeal can be dealt with quickly. It states, "Court did not give the opportunity to make last closing statements. (My right to speak)."
   
7. We uphold the State respondent's submission that, this ground is without substance and unmeritorious. Final submissions at the end of the trial on the whole of the evidence were made by the appellant's lawyer. This is authorized by s. 573 (3) of the Code which states, "the accused person .... may by himself or his counsel ..... address the court on the whole case."
   
8. It is on record as well that, the appellant was accorded his right under s. 572 of the Code to give evidence or make a statement in his defence. He elected to adduce evidence and followed that up with his sworn testimony. When the court administered the allocutus under s. 593 of the Code, he made a statement.
   
9. The second ground of appeal has no substance. It is dismissed.
   
10. Despite the generality of the first ground of appeal, the records reveal two fundamental issues that needed to be considered. These issues are restated from the body of the State's submissions as:
    
    1. Did the trial judge err in acting on the uncorroborated evidence of the complainant? If so, should the verdict be set aside on the ground that under all the circumstances of the case, it is unsafe and unsatisfactory?
       
    2. Did the trial judge err in finding that, the complainant was under the age of 16 years at the time of the alleged offence? If so, should this honourable court, instead of allowing the appeal, substitute a verdict of abuse of trust, authority or dependency under s. 229E and sentence the accused for that offence?
       

The law and basic principles governing Criminal Appeals

11. The power of the appellate court to determine appeals from the National Court in ordinary cases is set out in s 23 of the Supreme Court Act, Ch No 37 (the Act). Sections 23 (1) and (2) are pertinent to this appeal:
    

"(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

12. The question of whether a verdict is unsafe or unsatisfactory alleges the trial judge has made an error of law or has misapprehended or has failed to take into account material fact(s).
    
13. To succeed in an appeal against a finding of fact or application of the law, the appellant must convince the appellate court that the trial judge was wrong in his conclusion: Edwards v Noble (1971) 45 A.L.J.R. 682. The Supreme Court affirmed in John Beng v The State [1977] PNGLR 115 that, a conviction or the findings of facts by the trial judge will not be disturbed unless it is satisfied that they are wrong. It was stated:
    

"the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed." (Underling added.)

14. The case of, Denden Tom & Anor. v The State (2008) SC967 also makes this clarification:
    

"....... unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court cannot be easily upset. The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants' verdict."

Background

15. The case against the appellant was that on an unknown date, sometime during 2008, the appellant had pulled the complainant into the house they shared at Walilei, forced her onto a bed in the house and raped her. He then assaulted the complainant and threatened her not to tell his wife. The complainant said this rape incident was repeated on other occasions and threatened her to keep quiet.
16. The evidence of the complainant was uncorroborated. Her natural mother also gave evidence relating to the age of the complainant, the making a complaint by the complainant to her and the matter being referred to police.
    
17. It was alleged that the complainant became pregnant as a result of the occasion referred to and that she gave birth to a baby girl on 12 May 2009. It was submitted by the prosecutor at the trial this would suggest that the act of intercourse took place about August or September of 2008.
    
18. The complainant had lived with the appellant and his wife as their adopted daughter since she was a young baby and she was still living with them at the time of the alleged offence. Presence of a relationship of trust, authority or dependency between the appellant and the complainant is not in dispute.
    
19. The defence was one of general denial. The appellant denied ever sexually penetrating the complainant. He testified that she had made a false complaint against her because he used to beat her up. The two defence "themes" were that the complainant:
    
    1. was "abnormal" on occasion and her evidence could not be trusted;
    2. had been sexually active with three boys/men and that she must have got pregnant from one of those encounters.
       
20. The defence did not contest that the complainant was under 16 years of age at the time of the alleged offence. However, the prosecutor did advert, in his submissions on verdict, to the possibility that the court might have a doubt as to that fact. Hence, the prosecutor submitted and the defence conceded that the appellant could be convicted under s. 229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 (the Code as amended).
    

The Appeal – Safe and Satisfactoriness of verdict.

21. The appellant appears in-person. We did not invite his submissions as fundamental errors of law and facts appear on the face of the records. These errors raise the issue of safeness and satisfactoriness of the conviction on the alternative count of sexual penetration of a child under 16 years under s. 229A.
    
22. The issue raises the question of misapprehension of facts, failure to take into account material facts and errors of law. We set these out as they appear on the records but not necessarily in chronological order.
    

Sufficiency of State Evidence

23. It is trite law that, where the result of the case might appear to rest on whom to believe, particularly in sexual offences cases, it is not quite simple as preferring one version over the other. The requirement for proof in criminal law is very high. An accused person cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact that all elements of the offence are proven.
    
24. In this case, the conviction of the appellant on the alternate verdict of sexual penetration was based substantially on the uncorroborated evidence of the complainant. Mr Rutledge of counsel for the State respondent submitted that, the learned trial Judge warned himself of the danger of convicting the appellant on the uncorroborated evidence of the complainant and found that he was "convinced about the truth of the victim's evidence."
    
25. Counsel further submitted an important factor for the learned trial judge in accepting the evidence of the appellant was that he did not see any reason why the complainant would falsely accuse her stepfather. While accepting that the appellant had been forthright in answering questions the judge found that the appellant "did not give any reasons or possible motives as to why the victim would make up a false story against her adopted father."
    
26. In conceding that the trial Judge erred in saying that the appellant had not advanced "reasons or possible motives" since, the appellant had advanced a possible motive namely, revenge for beatings Mr. Rutledge submitted that, in the circumstances this case, the alleged motive does not carry such weight that it would be expected to motivate such a false complaint.
    
27. A pertinent issue touching the reliability and trustworthiness of the complainant is the allegation against her mental capacity. The evidence that the complainant was at the time of the complaint and prior to that, experiencing some kind of mental abnormality on occasion, was given by both the complainant's mother and the appellant.
    
28. Some support for that evidence are found in the transcription of the complainant's evidence which showed her to be vague and not giving direct, straightforward answers and difficulty in relating time, date and details of events that ought to be easily within her own knowledge. She took long to respond and at times left questions unanswered. At one point, her performance appeared to have irritated prosecuting counsel, prompting the trial judge to intervene.
    
29. The trial judge did not directly address the mannerism of the complainant in the witness box when his Honour made these observations on her demeanor and that of the appellant at p.141 of the Appeal Book:
    

"The court observed both the victim and the accused gave evidence. The court assessed their demeanor. Although the accused was forthright in answering questions, he did not give any reasons or possible motives as to why the victim would make up a false story against her adopted father."

30. However, in an earlier ruling granting the State leave for the prosecutor to amend the indictment to allege the offence happened, "on a day between January 2008 and December 2009", the principal reason given for the leave was to accommodate the vague and incoherent evidence of the complainant on the date of the incident. His Honour said at p.53 of the Appeal Book:
    

"What appears from the evidence of the victim yesterday may be a little complicated to understand the way she gave evidence. Many questions were asked in both examinations-in-chief and cross-examination where the victim just sat there and seemed not to understand or even know when the offence was committed. Many of the questions that were asked to her were not answered, she sat thinking and – but her evidence is clear apart from that despite what happened in her evidence."

31. The amendment was made at the end of the complainant's evidence. The judge's observation on the complainant's demeanor is significant. It supports the observations we have made from a perusal of the complainant's responses and performance on the records of her evidence. The complainant was not clear in all aspects of her evidence. One plausible explanation is that she was laboring under some form of mental infirmity.
    
32. The trial judge addressed the issue of mental incapacity of the complainant in this way at p. 141 of the Appeal Book:
    

"There was evidence by the accused that the victim was mentally affected. But where is the medical evidence or report to support such allegations. He did not tell the court why his adopted daughter would make up such a false story against the accused. If the defence wanted to reply on the defence of medical condition of the victim, they would have called a doctor to testify to that or file evidence to that nature." (Underling added)

33. His Honour with respect fell into error in shifting the burden of proof onto the appellant. An accused person need not provehis innocence. That is not the law. The right to innocence until proven guilty according to law is well entrenched in Constitution section 37 (4). The onus is on the prosecution to establish beyond reasonable doubt that the complainant is of sound mind.
    
34. The issue of mental infirmity in this case has been fairly raised by the defence on the balance of probability. That is all he needed to do in his defence. He has fairly raised an issue that was conceded by the State through its principal witness Rody Clement, the complainant's mother.
    
35. The evidence on the complainant's mental state although unspecified, was attested to by both sides. It has called into question, her reliability and credibility and has the potential to derail the prosecution case as it raises doubts on the fitness of the complainant to give sworn testimony.
    
36. With respect, that doubt cannot be simply cured by the trial judge's erroneous proposition that appellant had not proved the complaint's mental abnormality.
    
37. The case before the court below stands or falls on the evidence of the complainant alone. There was no corroborative evidence albeit, there is no requirement. In view of the evidence which questions the mental capacity of the witness, there is a greater demand for corroborative evidence. That evidence is important because without that independent evidence, her evidence is just talk.
    
38. Further, the trial judge was in a better position to assess her demeanor when he accepted her evidence as truthful. With respect, it was incumbent on his Honour to explain, from his own observation and assessment of the complainant's demeanor, the reason he accepted her evidence as trustworthy. The suggestion of mental instability of the complainant made it compelling for the trial judge to give reasons for preferring her evidence.
    

The evidence in our view is such that it is insufficient to support a conviction on the alternative charge of sexual penetration (s. 229A) or any other sexual offence under the Code as amended.

Issue of age

40. The State accepts that the evidence led at the trial strongly suggests that the complainant girl was probably 17 years of age at the time of the offence.
    
41. The trial judge at p. 138 of the Appeal Book noted from the whole of the evidence that, the complainant was born in 1992 and in that same year when the appellant adopted her, she was about 9 or 12 months old. Based on the allegation that the incident occurred about August/September 2008 the complainant was over 16 years.
    
42. The apparent misapprehension of facts and error of law conceded by the State cannot support a lawful conviction on the alternative verdict of sexual penetration under s 229A of the Code as amended.
    

"" With respect, these errors resulted from a failure on the part of the trial judge to assess or make any positive findings of fact on the age of the complainant. Had his Honour directed his mind to those facts, he would have found that the complainant was probably 17 years at the time of the complaint.

44. In sexual offences where age is an element of the charge, there is a requirement for strict proof as the learned authors of, Criminal law and Practice of Papua New Guinea stated at p.254:
    

"In a prosecution under this section, it is well established that strict proof of the girl's age is required. There are two questions. The first whether there is some evidence of age which, if accepted would either prove the girl's age directly or enable it to be inferred that the girl was under 16. The other question is, whilst there may be some evidence on which the judge could lawfully convict, whether there is sufficient evidence which ought reasonably to satisfy the judge that it has established that the girl is under 16: The State v. Peter Joseph Haydon [1976] PNGLR 509."

45. The Court in Peter Joseph Haydon's case was then dealing with the offence of unlawful carnal knowledge in the now repealed s. 216 of the Code. The authoritative statement in that case is applicable to sexual offences against children under the new amendments as it did then under the old provisions of the Code.
    
1. In this case, in failing to adhere to the requirement for strict proof of the complainant's age his Honour with respect, fell into error in misapprehending the facts. Consequently, his Honour erred in law in convicting the appellant on the alternative verdict of sexual penetration of a child under the age of 16 years.
   

Whether a further alternative verdict is available

46. Mr Rutledge puts forward a proposition that, if the court decides to set aside the verdict, it should, instead of allowing the appeal, substitute a verdict of guilty of "Abuse of Trust, Authority or Dependency" under s. 229E . Counsel relies on s.27 (2) of the Supreme Court Act 1975 in support of his contention.
    
47. The respondent's contention has support in the case of Tapopwa Thomas v The State [1979] PNGLR 140 where Andrew J suggested under the now repealed provision of s 25 (2) of the Supreme Court Act that convictions on alternatives are not only open by definition on the first charge but that convictions for specific offences are also open. The learned judge stated at pp 157 – 158:
    

"In my view the words "... he could on the charge have been found guilty of some other offence ..." are wide enough to mean he could on the hearing of the charges (or the indictment) have been found guilty of some other offence and should not be given the narrower interpretation that the second charge must be one which was open by definition on the first, as for example on a charge of wilful murder where verdicts of murder, manslaughter, unlawfully doing grievous bodily harm, unlawful assault thereby doing bodily harm, unlawful wounding and unlawful assault, are all open by definition (s. 552 of the Criminal Code) ....., because of the particular provisions of our Criminal Code on certain charges, convictions for specific offences are also open and consequently a person in standing his trial is in jeopardy or at risk of being convicted of one or other of the various offences not specifically named in the charge."

48. Section 27 of the Act is a regulatory provision. It replaced s. 25 and gives the Supreme Court limited power to deal with special cases where an appeal is before the Court under sections 4, 22 and 23 of the Act. Section 27 (2) reads:
    

"(2) Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts that proved him guilty of that other offence, instead of allowing or dismissing the appeal the Court may—

(a) substitute for the verdict a verdict of guilty of the other offence; and

(b) pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity."

49. The words, "and the Supreme Court is satisfied as to the facts that proved him guilty of that other offence" is in our view, in reference to a duty in the Supreme Court to carefully review the evidence before the National Court, the treatment given to it by the trial judge and the reasons given for accepting a set of facts over the other before it can be satisfied that the appellant could on the hearing of the charges (or the indictment) have been lawfully convicted of some other offence. This provision must be read together with the powers of the Supreme Court under s 23 of the Act.
    
50. Under s. 23 (1), if the Supreme Court, upon review of the conviction by the National Court thinks that the verdict should be set aside because under all the circumstances of the case it is unsafe or unsatisfactory, or there was an error of law or there was material irregularity in the course of the trial, it may instead of upholding the appeal, invoke s. 27 (2) where the appellant could have been lawfully convicted on some other offence.
    
51. In our view, the exercise of Court's discretion under s 27 (2) will depend on the particular circumstances of each case and provided that the appellant will not be highly prejudiced or deprived of his right to a fair trial.
    
52. Conversely, s. 27 (2) will have no application if the unsafe and unsatisfactory nature of the evidence or verdict against the appellant in the court below does not support any other offence or the evidence is such that, it is so insufficient to support a lawful conviction on any other offence.
    
52. In this case, both counsel before the National Court proposed to the trial judge to make a finding of guilty to a lesser offence of abuse of trust, authority or dependency (s.229 E). In our view, that is not a plausible and legally correct proposition. We do not think that the changes brought about by the Criminal Code (Sexual Offences and Crimes Against Children) Act allows for alternative findings of guilt of a lesser sexual offence under s. 541 of the Code. The accused was not indicted for rape, or unlawful carnal knowledge, which offence has been repealed by the Code as amended.
    
54. In our view, the correct approach in dealing with alternative verdicts for sexual offences in the Code as amended is averted to by Cannings, J in The State v. Kikia Solowet (2007) N3154 where his Honour stated:
    

"There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. The power to convict an accused of a lesser offence only exists where the Criminal Code specifically provides for it. For example, Section 539 says that a person indicted for wilful murder can be convicted of murder or manslaughter. Section 541 says that a person indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences.

55. The Court in Kikia Solowet in dealing with the offence of persistent sexual abuse of a child under s. 229D queried whether the offences of sexual penetration (s.229A) or sexual touching (s. 229B) were available as alternative verdicts.
    
56. In rejecting submissions from both counsel that the court would have been able to enter a finding of guilty of a lesser offence, his Honour Cannings J did not consider that a viable proposition as s. 541 of the Code applied to the old provision of the Criminal Code, noting in particular that the offence of rape has been redefined and the offence of unlawful carnal knowledge, has been repealed by the Code as amended. His Honour also suggested that:
    

"This is something that the Parliament needs to carefully look at. There should be a special provision in Division IV.2A allowing the court to enter convictions for lesser offences where all the elements of a more serious offence have not been proven."

57. In Samuel Kawar N4234, his Honour Kariko J expressed the same sentiments and added that:
    

".... Parliament also consider enacting an alternative verdict provision that would allow the court to find rape where the prescribed age is not proved on charges under sections 229A, section 229B, section 229C (indecent act directed at a child), section 229D, and section 229E (abuse of trust, authority or dependency).

58. With respect we adopt and affirm those views the two learned judges as the correct position in law. And we endorsed the orbiter dicta in Samuel Kawar''s case that, "Until such an amendment is legislated, a prudent prosecution would include in an indictment all the possible charges open on the evidence."
    
59. Accordingly we recommend to Parliament that, the Parliament looks carefully at enacting a special provision in Division IV.2A of the Code as amended or s. 541 to allow the court to enter convictions for lesser offences where all the elements of a more serious offence have not been proven. Cannings J stated and we agree, the rationale is that;
    

"It would be a travesty of justice if an accused person were able to escape criminal liability if, say, he or she were charged with persistent sexual abuse of a child and the State was only able to prove one instance of sexual penetration."

60. In the upshot, the evidence of the complainant was tainted by the evidence of her mental infirmity and hence, unreliable. The trial judge erred in acting on an uncorroborated and unreliable evidence of the complainant. The appellant was not given a fair trial and justice miscarriage when the trial judge misapprehended facts and committed errors of law. The verdict and conviction on the alternative verdict of sexual penetration of a child under 16 years is unsafe and unsatisfactory. There is no basis to lawfully convict on an alternative verdict.
    
61. We uphold the appeal and quash the conviction. The appellant is discharged forthwith.

________________________________________________________

The :Appellant In-Person
Public Prosecutor: Lawyers for the Respondent