Graham v State [2022] PGSC 85; SC2297 (24 August 2022)

SC2297

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV. NO. 20 OF 2021

BETWEEN
MICHAEL GRAHAM
Applicant

AND
THE STATE
Respondent

Kokopo: Gavara-Nanu J, Pitpit J & Tusais J
2022: 23^rd & 24^th August

REVIEW – Application for judicial review – Constitution; s. 155 (2) (b) – Leave – Application to review conviction – Conviction for sexual penetration of under-age girl – Circumstances of aggravation – Offender an uncle - Identification – Lack of fresh complaint – Explanation given for lack of fresh complaint – Defence of alibi not corroborated – Application dismissed.

Cases Cited:

John Beng v The State [1977] PNGLR 115
John Jamina v. The State [1983] PNGLR 318; SC262
Labi Amaiu v. Andrew Mald [2009] PGSC 38; SC1036
Peter Wararu Waranaka v. Gabriel Dusava [2009] PGSC 11; SC980
The State v. John Beng [1976] PNGLR 471

Counsel:

C. Namolo, for the Applicant
R. Luman, for the State

24^th August, 2022

1. BY THE COURT: The applicant was charged on an indictment that he on a date unknown between 1^st and 31^st May, 2016 at Mope village, East New Britain Province, Papua New Guinea, sexually penetrated a child under the age of 16 contrary to s. 229A (1) (3) of the Criminal Code Act, and that at the time of the offence he was in a position of trust, authority, and dependence as an uncle of the victim.
   
2. The maximum penalty for the offence is life imprisonment.
   
3. The applicant was tried on 13 November, 2019, by the National Court in Kokopo after he pleaded not guilty to the charge. On 10 December, 2019, he was found guilty and on 15 June, 2021, he was sentenced to 17 years imprisonment. The pre-trial custody period of 4 years 10 months 7 days was deducted, leaving the balance of his sentence at 13 years 1 month 3 weeks and 3 days.
   
4. The applicant is seeking review of his conviction under s. 155 (2) (b) of the Constitution. He was granted leave to review both his conviction and sentence on 10 February, 2022. However, he has through his counsel told the Court that he is only seeking review of his conviction.
   
5. According to the victim’s story, on the day of the offence she was in her Mope village with her two younger siblings. The applicant, who according to the victim and the other two State witnesses who are the victim’s mother and father is the victim’s uncle, was also at the village. The applicant went to the victim while on his way to the bush to get mustard and asked who she was with. She told applicant that she was with her two younger siblings, the applicant went and got mustard, then on his return he went at the back of the victim and suddenly held a knife at the back of her neck and forced her into a nearby drain and sexually penetrated her twice. The victim told the Court it was the applicant who sexually penetrated her and no one else. She said when inside the drain, she was lying face up as the applicant was on top of her and saw the applicant’s face clearly.
   
6. The victim’s parents were away from the village at the time of the offence. She did not tell the parents of what the applicant did to her when they returned to the village, until about two months later when after her mother noticed changes to her body asked her if she was pregnant. She told the Court that she did not tell her parents about what the applicant did to her on the day of the offence because the applicant threatened her at the time of the offence that if she reported him, he would kill her when going to school and throw her body into the bushes.
   
7. The issue before us is whether the applicant was the one that sexually penetrated the victim, because the applicant denied the charge and raised an alibi. No doubt the trial judge believed the victim’s story. It is an established principle of law that being the trial judge, he was in a better position to assess and decide whether the victim or the applicant was the truthful witness having had the benefit of observing their demeanor in the witness box. See, Peter Wararu Waranaka v. Gabriel Dusava [2009] PGSC11; SC980 and Labi Amaiu v. Andrew Mald [2009] PGSC 38; SC 1036. We must therefore be careful not to disturb the trial judge’s findings unless there is clear basis to do so. We can only disturb the finding of the trial judge if there is an error or errors by the trial judge in finding the applicant guilty of the offence. The onus is on the applicant to clearly establish error in the trial judge’s decision for this Court to overturn that finding.
   
8. We note that the trial judge was very careful in coming to his decision and had warned himself, quite rightly of the inherent dangers in accepting the victim’s story to convict the applicant of the offence. The trial judge clearly did not believe the applicant’s denial of the offence and his story relating to his alibi defence. The principles to guide this Court in deciding whether to believe the victim’s story relate to her ability to positively identify the applicant as the offender. The principles were succinctly stated by the Supreme Court in the oft. cited case of John Beng v. The State [1977] PNGLR 115. In that case the Supreme Court adopted the same principles applied by the primary Court for a positive and proper identification of an offender in The State v. John Beng [1976] PNGLR 471. These principles include whether at the time of the identification, the weather was good, whether the victim only had a passing glance of the offender, whether the victim knew the offender before the offence and whether the victim recognized the offender clearly. When these principles are applied to the facts of this case, they all fit well in favour of the victim’s story. That is, the day of the offence was clear, it was a clear and broad day light and the victim saw the applicant clearly during her whole encounter with him. The victim did not just have a passing glance of the applicant. The encounter between the victim and the applicant started when the applicant first met the victim while on his way to the bush to pick mustard then later grabbing her from back of her neck after returning from the bush after picking mustard and threatening her with a knife pushed against the back of her neck, then forcing her into the nearby drain and sexually penetrating her inside the drain twice. The victim had a clear and view of the appellant during that period. She spoke to the applicant and heard his voice as he talked to her during that encounter. The victim is appellant’s niece and they lived next to each other in the same village, and she knew him very well. In these circumstances, we find that the victim could not possibly be mistaken about the appellant. We find the victim’s story credible, and we accept her story as the true story.
   
9. Regarding the applicant’s denial of the charge and his alibi, we note that he told the trial court that he was going to call his wife to give evidence in support of his story that on the day the alleged offence occurred, they were together in another village far away from their village. However, the wife did not turn up in Court to give evidence. His explanation to the trial court for his wife’s failure to give evidence in support of his alibi was that she was expecting another man’s child and was ashamed to go to Court. If that was indeed true, then the question is why did he not get others who were living with him in that village to give evidence in support of his alibi? He had the onus to prove his alibi. See, John Jamina v. The State [1983] PNGLR 318. We find the applicant’s alibi is false and we reject it. As a matter of law, false alibi by the applicant amounts to corroboration of the victim’s story. In stating this we also note that the applicant denied knowing the victim and her family at his trial, yet the victim’s mother told the primary court that he is her first cousin brother. This evidence corroborates the victim’s story that the applicant is her uncle. The applicant in fact also told the police in his record of interview that the victim was his niece, thus corroborating the evidence of the victim and her parents. The applicant’s denials in this regard are clearly false and as a matter of law these false denials corroborate the victim’s story.
   
10. For the foregoing reasons, the applicant’s application for review of his conviction is dismissed.
    

Orders accordingly.

Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent