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Gasika v The State [1983] PGLawRp 483; [1983] PNGLR 58 (15 March 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 58 - Uda Liki Gasika v The State�

[1983] PNGLR 58

SC245

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

UDA LIKI GASIKA

V

THE STATE

Waigani

Andrew Kaputin Gajewicz JJ

23-25 November 1982

15 March 1983

CRIMINAL LAW - Evidence - Confessions - Admissibility - Determination of on voire dire - Principles applicable - Whether judge may read confession to determine admissibility - Discretionary powers - Exercise of discretion.

EVIDENCE - Confessions - Admissibility - Voire dire to determine - Discretionary powers - Whether judge may read confession to determine admissibility.

Held

N1>(1)����� On a voire dire to determine whether a confession is admissible the matters for determination are:

N2>(a)����� the question of its voluntariness; and

N2>(b)����� the question whether in all the circumstances of the case it would be unfair to admit the material against the accused.

N1>(2)����� A trial judge has, apart from the particular discretion to exclude evidence of a confessional statement, a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value.

N1>(3)����� Whether the trial judge reads the confessional material on the voire dire or not is a matter which goes to the exercise of this general or residual discretion.

N1>(4)����� Semble, the better practice, in most cases, is for the trial judge to hear the evidence of both sides on the voire dire and then to consider, with the help of any submissions from counsel, whether there might be some assistance obtained from looking at the document.

N1>(5)����� Where a trial judge has, in the exercise of his discretion, read confessional material on a voire dire (which is subsequently admitted in evidence) an appellate court may interfere with the exercise of that discretion only where the trial judge has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration.

Zacharia v. Republic of Cyprus [1962] UKHL 5; [1963] A.C. 634, at 661, followed.

N1>(6)����� On a voire dire to determine whether a confession is voluntary the confessional material should not be read aloud to the court prior to deciding the question of its admissibility.

Cases Cited

Cleland v. The Queen [1982] HCA 67; (1982) 57 A.L.JR. 15.

McDermott v. The King (1948) 76 C.L.R. 501.

MacPherson v. The Queen (1981) 147 C.L.R. 594.

Ibrahim v. The King [1914] A.C. 599.

R v. Grondkowski [1946] 1 K.B. 369.

R v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321.

R v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133.

R v. Suk Ula [1975] P.N.G.L.R. 123.

R v. Toronome-Tombarbui [1963] P.N.G.L.R. 55.

R v. Wendo and Others [1963] P.N.G.L.R. 217.

R v. William Taupa Torarula and Others [1973] P.N.G.L.R. 140.

State, The v. Bisket Uranguae Pokia [1980] P.N.G.L.R. 97.

Ura Francis Miriva v. The State (Unreported Supreme Court judgment No. SC197 dated 7 March 1981).

Wendo and Others v. The Queen [1963] HCA 19; (1963) 109 C.L.R. 559.

Wong Kam-Ming v. The Queen [1980] A.C. 247; (1979) 69 C.A.R. 47.

Zacharia v. Republic of Cyprus [1962] UKHL 5; [1963] A.C. 634.

Appeal

This was an application for leave to appeal against conviction on a charge of rape.

Counsel

C. Bruce, for the appellant.

K. Roddenby, for the respondent.

Cur. adv. vult.

15 March 1983

ANDREW J: The appellant was convicted at the July 1982 sittings of the National Court at Waigani upon a charge that he, on 15 June 1981 in Papua New Guinea, committed rape upon one Boni Virobo. He received a sentence of three years imprisonment with hard labour. He now seeks leave to appeal against his conviction upon some seven grounds. The appeal against sentence has been abandoned.

Upon the trial it was not in dispute that on this night the prosecutrix and her girlfriend, one Olive Mea, had been to the pictures at Wards Strip. They accepted a lift in the direction of home with some strangers and were deposited at Koki market. There they were met by the appellant and his co-accused (who were acquitted on the trial) who were in a bus driven by the appellant. They were given a lift towards their home at Hanuabada but the bus did not stop there and continued on. Thereafter, sexual intercourse took place when the bus was driven up a side road and stopped. The appellant maintained that it was by consent and this was denied by the prosecutrix. During the hearing objection was made to the tender in evidence of a record of interview conducted between the appellant and Constable Julie Wagambie on the 16 June 1981, at the Boroko police station. The learned trial judge conducted a hearing on the voire dire and ultimately the record of interview was admitted into evidence.

The proceedings on the voire dire give rise to the first ground of appeal namely:

�Ground 1:

N2>(a)����� The learned trial judge erred in ordering the record of interview of the appellant to be read aloud to the court prior to deciding the question of its admissibility on a voire dire hearing.

N2>(b)����� The learned trial judge erred in taking such record of interview into his possession and perusing same during the voire dire hearing.

N2>(c)����� The learned trial judge erred in questioning and allowing prosecuting counsel to question the appellant in relation to question and answer 33 of the said record of interview.

N2>(d)����� The learned trial judge erred having asked questions of the appellant in relation to question and answer 33 in the said record of interview and in allowing prosecuting counsel to do same, in not allowing the appellant�s counsel to ask questions of the appellant as to the meaning of his answer to Q.33 � �no we forced her�.

N2>(e)����� The learned trial judge erred in failing to disqualify himself from proceeding with the trial against the appellant after allowing the appellant�s record of interview to be read aloud to the court prior to ruling on its admissibility.�

In my view grounds 1(a), (b) and (e) may be dealt with together, for they raise the question of a judge�s access to the contents of a record of interview upon a voire dire hearing.

In jurisdictions where there is a jury there is no difficulty on the voire dire (a trial within a trial) as it is conducted in the absence of the jury. The document is before the trial judge and he must rule on its admissibility on the basis of its voluntariness. If the judge decides to admit the evidence, it is for the jury to determine what weight is to be given to it. If he excludes its tender into evidence, then it is never seen by the jury. In our jurisdiction, the judge is both the tribunal of law and of fact and the argument goes that the trial judge should not read the record of interview on the voire dire for if he later finds it to be involuntary and excludes it then his �jury-half� or the tribunal of fact is aware of its contents. Such a result, it is said, would be prejudicial to the accused for it is impossible for the trial judge to exclude it from his mind. Further, it is submitted that it is only appropriate or necessary for the record of interview to be before the trial judge by the consent of defence counsel.

Mr Roddenby for the State has submitted that it is artificial to talk about the function of a jury in our jurisdiction when there simply is no jury and that it does not assist by referring to jury trials and he says that where the judge is both judge of law and of fact he bears both responsibilities and is entrusted to exercise both functions properly. Whilst this is true there may still be, in my opinion, some circumstances where assistance may be had by reference to jury trials for it can still be said that in our jurisdiction, the judge in a sense is sitting as a jury (see per Taylor and Owen JJ in Wendo and Others v. The Queen [1963] HCA 19; (1963) 109 C.L.R. 559 at 573.

In the past, the practice has been for the trial judge to peruse the record of interview upon the voire dire. See generally R. v. Wendo and Others [1963] P.N.G.L.R. 217 and Wendo and Others v. The Queen (supra); R v. William Taupa Tovarula and Others [1973] P.N.G.L.R. 140 at 155 and R v. Suk Ula [1975] P.N.G.L.R. 123 at 125.

The question of admissibility on the voire dire involves firstly the question of voluntariness and secondly the discretionary question whether if in all the circumstances of the case it would be unfair to admit the document against the accused. It seems to me that there may be different considerations in relation to both questions in deciding whether or not a judge may read the document on the voire dire.

The sole object of the voire dire was to determine the voluntariness of the alleged confession in accordance with principles which have been long established by such cases as Ibrahim v. The King [1914] A.C. 599 and many others such as McDermott v. The King (1948) 76 C.L.R. 501, R v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133, R v. Toronome-Tombarbui [1963] P.N.G.L.R. 55 and recently restated in MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512 at 519, 520 and reaffirmed in Cleland v. The Queen [1982] HCA 67; (1982) 57 A.L.JR. 15. A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.

True it is, on the issue of voluntariness involving such questions as whether it was made in �the exercise of a free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure... nor that it is preceded by an inducement such as a threat or promise held out by a person in authority�, (see R v. Lee (supra)) � that the contents of the document would not normally be relevant to those questions. However, in my opinion, there may be cases where it could be relevant. One example is the reason given in R v. William Taupa Tovarula and Others (supra) per Minogue CJ at 155 that �the form and content of the statement will assist in assessing the credibility of the parties concerned in this conflict.� I think that in deciding the question of voluntariness there may be occasions where the form and content of the statement or record of interview will assist in assessing the credibility of the parties concerned in the conflict arising on a voire dire. It is trite to say that the trial judge must have all the relevant material before him in deciding such questions and must be given all the assistance possible. Clearly if for example, an accused was claiming that he was overborne, one might be able to gain some assistance by looking at the manner and form of both the questions and answers. I am unable to say that the contents of the confession must always necessarily be regarded as irrelevant to the issue of voluntariness.

Obviously the judge must be allowed a discretion in the matter. Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value. He has the overall conduct of the case and must ensure that justice is done between both sides. In my view, it is a matter going to the trial judge�s general or residual discretion whether he reads the confession on the voire dire or not. I think that in the conduct of the trial and in the exercise of the discretion: �... the competing public requirements must be considered and weighed against each other. On the one hand, there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment�; R v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321 at 335, or in other words, �The discretion, as doubt, must be exercised judicially, that is, not capriciously. The judge must consider the interests of justice as well as the interests of the prisoners�: R. v. Grondkowski [1946] 1 K.B. 369 at 372.

I do not find that it is an answer to say that the contents of the document should not be read because if it is later ruled inadmissible, it would be prejudicial to the accused as it is impossible for the trial judge to exclude it from his mind. The judge has two distinct functions as the tribunal of law and of fact. In the exercise of one, he should not be hampered by considerations relating to the other. He is entrusted with these functions which he must carry out judicially. If it should be that a confession is ruled inadmissible then on the ultimate question of guilt or innocence he must be entrusted to resolve that question without reference to the document and on the usual test of proof beyond reasonable doubt. It may also be said that the judge�s composition as tribunal of fact does not equate in reality to that of a jury � because of the obvious distinction between a body of lay persons and a judge. This again clearly illustrates that it is artificial to attribute prejudice or an inability to remove a fact from the mind of the tribunal of fact comprised of a judge, by comparison with a jury.

On the second issue arising on the voire dire, namely the discretionary power to reject where in all the circumstances of the case it would be unfair to admit the document against the accused, the problems involved in looking at the document are lessened. The judge is exercising a discretion already �in all of the circumstances� and in many cases the contents of the document would be relevant to that consideration. An example arises in this case, for on the trial it was alleged that the appellant did not properly understand English and that in the exercise of the discretion, the record of interview (it having been conducted in English) should have been rejected for this reason. In deciding such an issue, one would surely be assisted by looking at the document, to assess the accused�s command of the English language.

In my view, the better practice in most cases is for the trial judge to hear the evidence of both sides on the voire dire and then to consider whether there might be some assistance from looking at the document. He should invite submissions from counsel as to whether he should exercise that discretion or not.

The objection taken to the tender of the record of interview on this case was that there had been only an inadequate or partial caution given to the accused. As I have indicated, it is my view that the trial judge has a discretion whether to read the document or not. Interference with such a discretion can only be justified if the court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration: See Zacharia v. Republic of Cyprus [1962] UKHL 5; [1963] A.C. 634 at 661. There is nothing to say that the trial judge exercised that discretion improperly and indeed it may well have been of assistance to read the form and content of the caution, the order of the questions and the manner of the answers to assess whether the accused thereafter spoke of his own free will or if he had been compelled to answer.

In my view however, it was incorrect for the trial judge to have ordered the record of interview to be read aloud to the court prior to deciding the question of its admissibility. It had not then become evidence and should only have been read by the trial judge in order to assist on the question of admissibility. But it does not appear that this made any difference to the result and it has not caused any miscarriage of justice.

For these reasons, I would dismiss grounds 1(a), (b) and (e) of the appeal.

GROUNDS 1(C) AND (D)

On the voire dire the second objection taken was that it would have been unfair to admit the confession because of the accused�s inadequate understanding of English, his desire to speak in Motu and the probable availability of Motu speaking policemen in the Boroko police station at that time. Relative to the appellant�s alleged poor command of the English language was the crucial question and answer No. 33 of the record of interview which was as follows:

N2>�Q.33� Did Boni give her consent to you all to have sexual intercourse with her? A. No. We forced her.�

During the voire dire the trial judge asked the appellant the following questions:

N2>�Q.���� Did you understand the policewoman�s questions? A. I understood the easy ones but not the hard ones.

N2>Q.������ Can you tell me which questions you did not understand � look through the document and take your time (witness looks through the pages). A. Question 33:

N2>Q.������ Any other questions you do not understand? A. No.

N2>Q.������ Read out aloud Q.33. A. (Read out)

N2>Q.������ Read aloud the answer. A. (Read out)

N2>Q.������ What did you not understand about the question? A. The word consent.

N2>Q.������ What did you think the policewoman meant by that question? A. I don�t know.�

Following these questions, defence counsel made application for a mis-trial on four grounds including the ground that whether the accused understood the question was a jury question going to weight and that it was wrongly introduced into the voire dire. This application was rejected and counsel were invited to ask questions arising from the above questions. It was put to him by the prosecution that he did understand Q.33 but a question as to how he should have answered was disallowed. He was then asked questions generally by his counsel as to the meaning of various words such as �rape� and he was asked about Q.33 and what he understood by the question, to which he gave some vague answers and he was then asked what he had meant by the answer he had given in the record of interview. This was disallowed and the following reasons were given:

�I disallowed the State question as to what the accused meant to say and I think it is the same here. If the State were to ask on a voire dire �Are your answers true?�, that would be inadmissible, so to your question to invite the witness may be to say the opposite is inadmissible. Is it not true that any evidence the accused gives here � whether an answer is true or not � does not go in on the trial?

Mr Bruce: That is correct.

Judge: We are concerned here with whether the accused understood the questions, not with the meaning of his answers.�

I think it is clear enough from all of this that his Honour was alive to the kind of problem raised in Wong Kam-Ming v. The Queen [1980] A.C. 297 and associated with the question of whether on a voire dire hearing during the cross-examination of a defendant as to the admissibility of his challenged statement, questions may be put as to its truth. That case is authority that such practice is improper and has been followed and applied in The State v. Bisket Uranguae Pokia [1980] P.N.G.L.R. 97. But the trial judge made it clear that questions would only be allowed as to the accused�s understanding of the questions and this was critical to the objection taken, namely that the accused had an inadequate understanding of English. He avoided any question as to the truth of the contents of the document and consequently I can see no error of law or miscarriage of justice and this ground of appeal fails accordingly.

GROUND 3

�The learned trial judge erred in not exercising his discretion in favour of the appellant to disallow the said record of interview being admitted into evidence on the basis that in all the circumstances it was unfair to do so.�

Under this ground it was again argued that the appellant�s inadequate command of English should have led to the rejection of the record of interview.

The trial judge referred to his discretionary power to reject the confession on this ground and ruled that he had considered the arguments raised and read the confession to look at the English used and then rejected those arguments.

The interview commenced with the following questions and answers:

N2>�Q.���� �My name is Julie Wagambie and this is Jimi Vulolo. We are both members of police force and are both in C.I.D. Homicide Squad. For the purpose of this record of interview what language do you want us to speak English, Pidgin or Motu? A. I would say Motu.

N2>Q.������ I�m very sorry but I myself don�t speak Motu. Would you prefer Pidgin or English? A. I�ll try English.�

The Constitution provides in s. 37(4)(b) that a person charged with an offence shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged and upon the hearing of his trial he is guaranteed the assistance of an interpreter if he cannot understand or speak the language at the trial of the charge (Constitution, s. 37(4)(d)). The requirement of understanding of language is taken up by police instruction requiring the record of interview to be conducted in a language a person understands.

Here the appellant elected to try English. There was evidence that he had been educated to standard 6. At the commencement of the interview, he acknowledged that he understood that anything he said would be typed down and could later be given in evidence. He also acknowledged that at its completion he was given the interview to read through which he did and that he was asked if there was anything he wanted to change and he replied �they are all okay with me� and he signed the record. He acknowledged that the answers he had given were true.

From this evidence (together with all the evidence on the voire dire) and from an examination of the record of interview, it seems to me that the appellant did have an adequate understanding of English. The trial judge exercised his discretion to admit the document and there is nothing to show that he wrongly exercised that discretion. The discretion to be exercised when real evidence is sought to be tendered in a criminal trial is no different from the general discretion which always exists to exclude admissible evidence when to admit it would be unfair to the accused.

There was also evidence from Mr John Baure, a senior tutor in the language department of the University of Papua New Guinea. Whilst his evidence was heard on the trial and not on the voire dire, I think it may be looked at under this ground as to whether the appellant properly understood English as being relevant to the question of fairness and as to whether there has been any miscarriage of justice.

He gave evidence that the word �consent� (as used in Q.33) would probably be beyond the understanding of the normal grade 6 student. He thought that around grade 10 would understand it. He examined the whole record of interview including Q. and A. 33 and concluded that the standard of answers given approximated to around grade 10. In my view this is a further ground for demonstrating that there has been no wrongful exercise of discretion such that it operated unfairly against the appellant.

I would dismiss this ground of appeal.

GROUND 5

�The learned trial judge erred in failing to retire from the bench to reconsider his judgment when corrected by the appellant�s counsel that there was no evidence from the State witness Boni Virobo and Olive Mea of a complaint to the appellant in relation to stopping the bus and allowing them to alight after passing through Hanuabada.�

In relation to this ground the court has the advantage of the trial judge�s report under r. 33(d) of the Supreme Court Rules 1977.

The trial judge delivered oral judgment with the assistance of hand-written notes. In the course of that judgment his Honour referred to the fact that there had been some dissent or complaint by the prosecutrix after the appellant�s bus went past Hanuabada. This was relevant to the question of consent and as to whether the appellant had a reasonable belief that she was consenting. The trial judge was advised however that there had been no complaint after Hanuabada as evidenced by the following piece of evidence:

N2>�Q.���� You agree you only said once to stop at Hanuabada and that was before he said he was going to drop his uncle off. A. Yes.�

The trial judge recognized that he had misquoted the evidence and in his report to this Court, he says:

�I paused for a few minutes on the bench thinking what I would do. I considered that although that correction reduced the weight of my reasons as prepared for convicting Liki, I had many other reasons for thinking his guilt proved beyond reasonable doubt. I then acknowledged my error to the court, said I was correcting myself and went back to point 1 and delivered oral remarks as now appear at p. 10 of my reasons in place of my former remarks.�

In the light of the judge�s report it is a little difficult to understand this ground of appeal. There was no onus upon the judge to retire from the bench. He has made it clear that he considered there was ample evidence anyway for being satisfied beyond reasonable doubt in the guilt of the accused so that the error made no difference to the result. This ground may raise the general question or may be relevant to the question of whether in all the circumstances the conviction is unsafe and unsatisfactory in which case it can be dealt with under ground 7, but I cannot see that failure to retire from the bench to reconsider judgment can in itself amount to an error of law and that it has any merit as a separate ground of appeal. I would dismiss ground 5.

GROUND 6

�The learned trial judge erred in finding that the appellant�s answer to Q.33 in the record of interview � �No we forced her� was � �a two-fold admission:

N2>1.������ that he had sexual intercourse without her consent; and

N2>2.������ that he forced her to have sexual intercourse using physical force.�

I have already referred to the evidence of Mr Baure, a senior tutor in the language department of the University of Papua New Guinea. He gave extensive evidence about the accused�s understanding of English some of which has already been discussed. He also said, �the answers are in good English rather beyond standard 6 English. The answers to Q.20, the comprehension is much above standard 6. I doubt if a person who has not taken a place in high school would be able to write that comprehensive English.�

The trial judge was in a more advantageous position than this Court. He saw and heard the appellant and Mr Baure and he assessed the standard of English used in the record of interview. He had the contents of the record of interview before him in the context of all the evidence. The conclusions he came to on the meaning of the answer to Q.33 were reasonably open to him on all of that evidence. I cannot see how he has erred or has exercised any wrong principle. It is an interpretation which, put simply, was clearly open.

In my view this ground fails.

GROUND 7

Was amended on the hearing to read as follows:

�In all of the circumstances the conviction is unsafe and unsatisfactory, more particularly in that:

(a)����� The learned trial judge erred in accepting the evidence of the State witnesses Boni Virobo and to a lesser extent Olive Mea as opposed to the evidence of the appellant and the witness Neme Au.

(b)����� The learned trial judge erred in finding evidence of a recent complaint by Boni Virobo.

The factual evidence has been ably summarized by counsel for the appellant and the evidence of the prosecutrix has been subject to much scrutiny and is severely contested. So also is her evidence in comparison to that of her companion on the night, Olive Mea.

Briefly summarized the submissions as to the weakness of her evidence and the conflicts between both witnesses consist of the following:

N2>(1)����� There was a conflict as to what happened at the pictures � one saying they went in to see the pictures and the other saying they did not.

N2>(2)����� One saying they went there with an uncle and the other in a taxi.

N2>(3)����� One saying they left the pictures with a Papuan person and the other saying it was a Highlander.

N2>(4)����� Conflict as to whether the co-accused were outside the bus or inside when intercourse took place.

N2>(5)����� Conflict as to when clothing was removed by the accused.

N2>(6)����� Conflict as to what clothing was worn by all the accused.

N2>(7)����� A conflict as to whether the accused Neme Au was carrying a knife or not.

N2>(8)����� The fact that the prosecutrix admitted to telling lies to the court.

N2>(9)����� A conflict over whether the prosecutrix accepted money and as to what reason she accepted it.

N2>(10)��� The fact that the prosecutrix lied about a prior conviction.

In relation to some of these matters the trial judge found as follows:

�There are numerous conflicts on the evidence of the two girls. For example on details of what happened before their arrival at Koukou going to credit, to the accuracy of their recollection. Boni said her uncle dropped them off at the pictures, they saw one film and got a lift with a highlander at Koki. Olive said they got a taxi to the pictures, did not see any film because she had a row with the ticket seller who gave her short change, and they got a ride with a Papuan to Koki. On the details of the offence Boni said the order of men who had sexual intercourse was Liki, Goasa, Neme Au, Morea and Bari, whereas Olive said the order was Liki, Morea, Neme, Goasa and Bari. Boni said they all had their trousers off but their underpants on. Olive gave different evidence as to who was wearing trousers and who was wearing shorts and in each case pulled down and that Neme was naked.

In another case, where the fact of the intercourse and identity of the men concerned were in issue, a judge might conclude that the conflicts were such that the prosecutrix could not be believed beyond reasonable doubt but not in this case on those matters because the fact of intercourse and the identity of each of the five men are admitted by each man in his record of interview.�

I have set out some of the alleged weaknesses and conflicts in the evidence and some of the findings on that evidence as an illustration of the fact that it is not necessarily alleged that the findings are wrong but that they should not have been found in the light of the evidence of the accused and his witness.

�Where a trial judge�s conclusions of fact turn upon witness credibility, I think that an applicant must show that the rejection of testimony favourable to him, and the drawing of inferences adverse to him, flowed from some fundamental misconception of the evidence by the trial judge, or from his failure to take properly into account the evidence as a whole: per Kearney Dep. CJ in Ura Francis Miriva v. The State Unreported Supreme Court judgment SC197 dated 7 May 1981.�

The question here is whether there was some fundamental misconception of the evidence or whether the trial judge failed to take properly into account the evidence as a whole. It may also be asked if the findings of fact were reasonably open to the trial judge. It is clear that the trial judge was well aware of the conflicts between the evidence of the prosecutrix and that of Olive Mea and that he considered all of those matters which I have set out, which it is said should have led to the prosecutrix being disbelieved. But having considered all of those matters he accepted the evidence of the prosecutrix. He said:

�On the whole, I was impressed by Boni�s evidence as a witness of the truth. She stuck to all the essential features of her story of her lack of consent to intercourse by each accused, of force being used by Liki, pulling her out of the motor vehicle, pulling her laplap off and panties off, pushing her to the ground and covering her mouth with his hands and of Neme Au showing her the knife and threatening her with it.

When I consider which inference I should draw, I am entitled to look at the circumstances of the case and looking at them I consider I should draw the inference which the State asks me to draw and not the defence one. Granted that Boni was a �tough� girl, out at night, cadging lifts, she had nevertheless been taken to Koukou by a trick. It was a lonely place, she was with a friend but out-numbered by five boys or men, none of whom she had met before (I later find that she had not touched Liki or Goasa�s penis for reasons which I later give). But applying that finding here, she had not in my view given to the boys any encouragement. She asked them to stop at Hanuabada. There was no discussion of money. She had not answered Liki�s question asked at Koukou when he asked for sex. She had struggled with Liki. He had pulled her out of the car. By my observation she is not a big girl. She would have been no physical match for any of the boys. There was little or no preliminary talking, joking, laughter, talk of a sexual nature, in general terms �chatting up�, which would have excited her libido to have sexual intercourse. The circumstances of having been picked up at Koki, driven straight to Koukou with five men she did not know � although she knew something of Liki � one of whom Neme Au was in his fifties and I doubt if an eighteen year old would find him sexually attractive, late at night, taken there by a trick, are against me drawing an inference of consensual sexual intercourse. The more likely inference which I draw is that in those circumstances and through fear aroused by Liki�s pulling her from the car, pulling her towards the back and pulling off her laplap she gave in, in those circumstances and through that fear.�

In my view, these findings of fact and the inferences drawn were open on the evidence, I am unable to see that there is any fundamental misconception of the evidence and clearly the evidence as a whole, including all of those matters which it was said went to show that the prosecutrix should not have been accepted, were properly considered in the judgment. But in addition to those findings and inferences, there is the other crucial piece of evidence namely the admission in the record of interview at Q. and A. 33, that �we forced her�.

On all of this evidence I would conclude that the findings were reasonably open, that no error has been shown and that it is not shown that the conviction is unsafe and unsatisfactory.

I would formally give leave to appeal and treat the application as the hearing of the appeal and dismiss the appeal.

KAPUTIN J: I agree with the orders proposed by Andrew J, and with his reasons.

GAJEWICZ J: I have had the advantage of reading the draft judgment of Andrew J, and for reasons stated by him I agree that that leave to appeal should be given and the appeal should be dismissed.

Leave to appeal granted and application for leave to appeal treated as the hearing of the appeal.

Appeal dismissed.

Lawyer for the appellant: A. Amet, The Public Solicitor.

Lawyer for the respondent: L. Gavara-Nanu, The Public Prosecutor.