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Republic v Karl [1985] NRSC 1; [1986] LRC (Crim) 158 (20 November 1985)

[1985] NRSC 1; [1986] LRC (Crim) 158

IN THE SUPREME COURT OF NAURU

REPUBLIC

v

KARL

Supreme Court:
Donne, C.J.
12-14th, 20th November 1985

(1) Criminal procedure - Rape - Whether trial can proceed in absence of prosecutrix/ victim.

(2) Criminal evidence - Rape - Proof - Confession - Prosecutrix/ complainant absent from trial - Whether confession requites corroboration - Burden on prosecution – Judges’ Rules.

(3) Sentencing - Rape - Victim absent from trial - Offence not prevalent - Appropriate sentence.

In a trial for rape the prosecution were unable to produce the prosecutrix/victim who was abroad and could not return to Nauru without considerable inconvenience. The defence argued that the trial could not proceed in the absence of the prosecutrix, as defence counsel would not be able to see her and assess the value of her complaint. The prosecution case was based largely on a confession made by the accused and the defence also argued that corroboration was required.

HELD: Defence submission rejected: accused convicted and sentenced to 3 years’ imprisonment.

(1) Since it was for the court to determine the probative value of the confession, the trial could properly proceed in the absence of the prosecutrix. (See p.162 post.)

(2) It was an established principle of law that a confession by a person charged with a crime was sufficient without corroboration to sustain a conviction. The burden remained on the prosecution to prove that the confession was made freely and voluntarily and there was no evidence in the present case of duress or inducement. (See p.162 post.) R v Baldry (1852) 169 ER 568 and McKay v The King [1935] HCA 70; (1935-36) 54 CLR 1 followed. In any event, there was ample corroboration in the present case arising from the medical evidence and an identification parade (See p.163 post.)

Per curiam: The Judges’ Rules are not rules of law and even if not strictly complied with, the court may disregard non-compliance if it is satisfied that the confession is voluntary. (See p.163 post.)

(3) Taking into account the fact that rape was not prevalent in Nauru (the last proven case being in 1979) and other circumstances, such as that the accused was a first offender, 21 years of age and had committed a most serious crime, that the Court had been deprived of hearing the victim and that there was a need to deter others, a sentence of three years' imprisonment would be imposed. (See. p.164 post.)

Cases referred to in judgment:
McKay v The King [1935] HCA 70; (1935-36) 54 CLR 1
R v Baldry (1852) 2 Den 430, 169 ER 568
R v Lambe [1730] EngR 30; (1791) 2 Leach 552, 168 ER 379
R v McNicholl [1917] 2 IR 557
R v Sullivan (1887) 16 Cox CC 347
R v Sykes (1913) Cr App R 233, CCA

Other sources referred to in judgment:
Archbold, Criminal Pleading, Evidence and Practice, 29th ed. (1934), p.398
Best on Evidence, 12th ed. (1922), p.474
Halsbury’s Laws of England, 2nd ed., vol. 9, p.207
Judges’ Rules
Phipson on Evidence, 6th ed. (1921), p. 264

Trial
The accused was on trial for rape. The facts are set out in the judgment of Donne, C.J.

Saksena for the prosecution.
Kaierua for the accused.

13th November 1985

DONNE, C.J. gave the following interim decision:

In this trial of rape, the prosecution are unable to produce the prosecutrix. Mr. Kaierua for the accused, by way of preliminary point, submits that, in the circumstances, the Court should discharge the accused on the grounds that he will not have the opportunity of cross-examining the prosecutrix and the Court will not be able to see her and assess the value of her complaint. For the prosecution, Mr. Saksena argues that the prosecution relies on the confession of the accused as to his guilt and submits that the case should proceed. He states the woman is away from Nauru and in the service of Australia in Colombo and cannot be returned here without considerable inconvenience.

Rape is a very serious charge and it is one in which corroboration is usually necessary before a conviction can be obtained. Often corroboration is obtained by a confession of the accused. Here it is sought to use that confession alone without the evidence of the prosecutrix on the basis, that, if it amounts to a clear admission of guilt, it is the best evidence that can be produced. As Erle, J., said in R v Baldry 169 ER 568 at p.574:

"I think that the statement of the prisoner was properly received. In my opinion, the best defence of innocence is founded on the statement which he is shewn to have used when first accused; and I am of opinion that when a confession is well proved, it is the best evidence that can be produced; and that unless it be clear that there was either a threat, or a promise to induce it, it ought not to be excluded."

I have considered the authorities cited to me. R v Sykes (1913) Cr App R 233 was a case where the summing up of the Commissioner to a jury was challenged. Speaking of confession made by the accused, he told the jury that a man may be convicted on his own confession alone. Ridley, J., at pp.263-264 said:

"A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing; the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in the case, proved before us? It was said that the murder was the talk of the countryside, and it might well be that a man under the influence of insanity or a morbid desire for notoriety would accuse himself of such a crime. I agree that this is so, but it was a question for the jury, and they ought to see whether it was properly corroborated by facts, and so they were directed. We think that this part of the case was quite sufficiently left to the jury, and the Court thinks that there is no reason for giving leave to appeal."

However, there is authority much closer to home. The High Court of Australia, by which decisions this Court is bound, considered the question in McKay v The King [1935] HCA 70; (1935-36) 54 CLR 1, a case concerning a charge of buggery wherein the complainant, a young boy, after having made the complaint against the accused, denied at the hearing the offence had been committed. The accused had signed a confession admitting the offence. He also denied it at the hearing. The Chairman of the General Sessions at which the trial was held directed the jury:

"The proof relied upon by the Crown in this case is a confession by the accused, and I tell you gentlemen, as a matter of law, that if you find that the accused man made a voluntary confession, that it is direct and positive, and it has been satisfactorily proved to you, you may convict, because of that, without any corroboration whatsoever."

The Court was asked to upset the conviction of the jury following the summing up. Latham, C.J., at p.5 said:

"It may be said that an examination of the evidence discloses a number of circumstances which may be described as corroborative of the confession in the sense that if the evidence (consisting in part of admissions made by the accused in the box) were accepted by the jury, it would make the truth of the confession probable. It is not, however, necessary to consider whether such corroboration added to the confession would be sufficient to justify a verdict of guilty, because the direction of the learned Judge was unequivocally to the effect that a voluntary confession which was direct and positive and satisfactorily proved was sufficient to justify a conviction without any corroboration of any kind.

In the course of the argument, a number of text-books and decision have been cited, but there is no decision of a Court which lays down the proposition for which the applicant contends, namely, that a confession must always be corroborated before a jury can act upon it. The opinions of text writers exhibit much divergence upon the subject. In Halsbury’s Laws of England, 2nd ed., vol. 9, p.207, it is stated that 'a defendant may be convicted on his own confession without any corroborating evidence’, but, at p.183, note g, it is stated that ‘the corpus delicti’ may be proved by direct evidence or by irresistible grounds of presumption . . . It is doubtful whether it must be established by some evidence other than the mere confession of the accused.’ In Phipson on Evidence 6th ed. (1921), p.264, Best on Evidence, 12th ed. (1922), p.474 and Archbold’s Criminal Pleading, Evidence and Practice, 29th ed. (1934), p.398, it is stated that a confession is sufficient to justify a conviction without any corroborative evidence."

and at pp.6-7:

"It is contended that there must be independent evidence (in addition to any confession) that the acts were in fact done, or, at least, other evidence tending to show that the confession is probably true. In cases of homicide, in the absence of any other proof that a person has been killed, the Courts are reluctant to accept confessions and Judges have wisely adopted the practice of warning juries that they must consider the matter very carefully before they convict upon the sole evidence of a confession in such a case. In dealing with this application, I express no opinion upon cases of homicide and the other exceptions mentioned. Dealing then with other criminal offences, I have been unable to discover any authority that it is a rule of law that a prisoner cannot be convicted upon evidence consisting solely of his confession."

Dixon, J., at pp.8-9 said:

"What is said to give the case a special character is the direction that the jury might act on the prisoner's confession without corroboration. It is contended that at common law an uncorroborated confession could never suffice to support a conviction. But there is no such absolute rule. The judgment of Palles, C.B., in R v Sullivan (1887) 16 Cox C.C., at pp.350-354 has disposed of the notion that a general rule of law existed that, without corroborative evidence, no confession by a prisoner could be enough to found a verdict of guilty. It is a mistake to attempt to lay down general proposition as to the sufficiency of forms or descriptions of evidence to establish an issue. Cases rarely, if ever, occur in which one description of evidence is isolated from all others. The ultimate standard of proof required by law in a criminal case is a sufficiency of legal evidence to satisfy reasonable men to the exclusion of any reasonable doubt. When a confession is relied upon in fulfilment of this requirement, it must almost necessarily happen that the circumstances in which it was made are proved, and these must go far to determine its actual probative force."

McTiernan, J., at pp. 10-11 said:

"However, in the evidence of both the boy and the accused there are certain circumstantial details of much probative force tending to show that the offence charged had been committed against the boy and implicating the accused. In his charge to the jury the learned Judge said: 'The proof relied upon by the Crown in this case is a confession by the accused, and I tell you, gentlemen, as a matter of law that if you find that the accused man made a voluntary confession, that it is direct and positive, and that it has been satisfactorily proved to you, you may convict, because of that, without any corroboration whatsoever.' This direction cannot on the authority of any decided case be said to be incorrect. There is no question that the accused's admission of the truth of the boy's statement, whereby he in terms admitted his guilt, was admissable in evidence. It must be remembered that the law surrounds the admission of a confession in evidence with safeguards for the protection of the accused; and, repeating some observations made in earlier cases as to the probative force of confession by an accused person, Sir James Campbell, C.J., in R v McNicholl [1917] 2 IR at p.590, said, 'If it is conceded, as now it must be, that in the case of every other crime a confession by the accused is the highest and most satisfactory proof of guilt . . . ' (cf. R v Lambe [1730] EngR 30; (1791) 2 Leach 552, at p.554, and R v Sullivan (supra). In the circumstances of this case, there is, in my opinion, no reason why the accused's confession should not have attributed to it this quality. The direction complained of is amply supported by the authorities cited in the judgment of the Chief Justice."

I am, therefore, satisfied that the charges can properly be proceeded with in the absence of the prosecutrix. It is for the Court to decide whether the confession, when admitted in evidence, is in fact a confession of the particular offence, whether it is a confession that the accused person was the person who did the acts complained of, or was guilty of the omissions which constitute the offence charged. If the confession is subsequently repudiated, it is for the Court to decide what degree of credit should be given to the original confession and the subsequent repudiation respectively.

14th November 1985

DONNE, C.J. gave the following summing up and findings:

There is no question that in law a confession, admission or statement, although not made in Court, if made by the person charged with a crime, is sufficient, without independent proof of the commission of the crime, to sustain a conviction. As Erle, J., said in Baldry’s case, to which I referred yesterday, it is the best evidence that can be adduced.

There need to be no corroboration of the confession. These points were fully traversed in the High Court of Australia case I cited yesterday, McKay’s case [1935] HCA 70; (1935-36) 54 CLR 1.

As I also said yesterday, I am satisfied that the charges can properly be proceeded with in the absence of the complainant. It is for the Court to decide whether the confessions made here are, in fact, confessions of each particular offence, whether they are confessions that the accused person was the person who did the acts complained of and that the acts constituted an offence in each case.

Now, in considering these matters, the Court must consider on whom the burden of proof lies. The burden is on the prosecution. It never shifts. The prosecution must establish the act of sexual intercourse and that there was no consent to it. The case must be proved beyond reasonable doubt. Firstly, as to the confessions made, I am completely satisfied they were made freely and voluntarily. There is no evidence to suggest any duress or inducement on the part of the police officer who took them. In fact, I consider he acted with commendable propriety in his handling of them and I am satisfied each confession establishes the commission of the respective offence evinced by it and establishes that the accused was the person who committed the offence and that he understood fully that what he had done was against the law. I have considered Mr. Kaierua's submission that the Judges' Rules have not been complied with. As I have said, I am satisfied the confessions were fully and voluntarily made and I do not uphold the submission. The Judges' Rules are not rules of law and, even if not strictly complied with, the Court may disregard non-compliance if it is satisfied the confession is voluntary.

These findings alone, I consider, are sufficient to warrant a finding of guilty in each case, but, in deference to Mr. Kaierua who raised them, I deal with the following submissions.

As to a complaint, there is no question on the evidence of the Police Investigating Officer that a complaint was made. The Report he made put in through the defence also established this. Due to the failure of the complainant to give evidence, the substance of the complaint could not be given in evidence. But the fact that a complaint was made is established and it is immaterial what was said by the complainant - in law, a complaint does not amount to corroboration.

As to penetration, Mr. Saksena properly submits that the evidence of the doctor, dealing with her findings in relation to the complainant's sexual organs, establishes penetration.

As to consent, the fact that there has been a confession indicating the use of threat by knife negatives any consent.

As to corroboration, the confession renders the need for corroboration unnecessary. But there is ample corroboration in the doctor's evidence and the identification parade which I hold was properly conducted with the accused's consent after his being advised that he need not consent. I consider also that it has been established that the strands found on the bed of the complainant are from the wire acknowledged by the accused to be his.

On considering all these matters, I am satisfied beyond reasonable doubt of the accused's guilt and accordingly find him guilty.

20th November 1985

DONNE, C.J., in sentencing the accused, stated:

I have read the Probation officer's report.

The crime of rape is a very serious crime and within the crime itself, there are degrees of seriousness. The Court considering the matter usually takes into consideration the manner in which the rape was carried out; whether or not there was physical damage resulting from the act; whether there was psychological or mental damage to the girl raped. In this case, the person raped has neither been seen or heard by the Court and that is the matter which must weigh heavily in your favour. The medical evidence itself does not suggest that there was a rape involving much physical harm and evidence has been produced to the Court, and the Court has had the benefit of looking at the report put by your counsel that the girl raped appeared to be reasonably calm and composed close after the rape. I have had the benefit of considering the case submitted by your counsel, that is a case of 1979. There is one significant difference between that case and your case. The offender had an appalling list of nasty offences. However, his age was close to yours and the victim of his was an expatriate woman. Now the fact that the last case proven in this Court was in 1979 indicates one clear fact and an important one, because the Court must ascertain whether or not the offences are prevalent. The fact that the last case of proven rape was in 1979 shows that the offence is not prevalent. So I take these facts into consideration that you are a first offender, you are 21 years of age, that you have committed a most serious offence, that the Court has been deprived of the benefit of hearing the victim of your offence, that the offence itself by the record of this Court is shown not to be prevalent in Nauru and the fact that there must be a sentence to deter others from doing what you have done.

Being, as I am, guided and to some extent restricted by the sentence in the previous Court case, and taking into consideration the matters I have referred to, I propose to sentence you to three years' imprisonment.