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State v Lepi [2002] PGLawRp 22; [2002] PNGLR 447 (30 April 2002)

[NATIONAL COURT OF JUSTICE]

THE STATE

v

MOKI LEPI

Waigani: Kandakasi J

15-17, 23 February; 30 April 2002

CRIMINAL LAW – PRACTICE & PROCEDURE – Witness of tender age - Need to caution such witnesses of the risks of giving false evidence under oath – Sexual offences need corroboration – Court may proceed to convict on uncorroborated evidence but need to first warn itself of the dangers of proceeding to convict in such circumstances.

CRIMINAL LAW – PRACTICE & PROCEDURE - Application to amend indictment during trial but before close of State's case – Indictment at variance with evidence – All amendment should be allowed unless the proposed amendment will prejudice the defence case and or other wise affect the merits of the defence case – Effect of amendments must be put to the accused who must take a plea on the amended indictment – With agreement of parties, evidence called under original indictment may be adopted as evidence under the amended indictment – Criminal Code s. 535

CRIMINAL LAW - Verdict – Attempted unlawful carnal knowledge of girl under ten years and unlawfully and indecently dealing with girl under 16 years old – Victim aged 5 at time of offence – Complaint made almost 3 years later during course of advisory talk with mother and on being assured of support - Lack of direct corroboration – Need to warn of dangers of proceeding to convict in such circumstances - No reason to doubt victims' evidence – Return of guilty verdict – Criminal Code ss. 215 and 217.

EVIDENCE – Evidence called under original indictment may be adopted as evidence under amended indictment – In the event of a dispute as to the use of such evidence the witnesses may be recalled to repeat their evidence and be cross–examined.

EVIDENCE - Evidence of tender age of witness recalling and giving evidence of incidents which occurred almost three years ago – Credibility of – Witness demonstrate good memory and answering questions appropriately - Showing evidence of belief in God and knowing the risks of lying under oath – No break under cross-examination – No reason provided to doubt or find witness making up a story – Evidence accepted as credible and reliable.

Facts

The accused was charged with attempted carnal knowledge of a girl under the age of ten and another count of unlawful and indecent dealing with a girl under the age of sixteen years. The accused pleaded not guilty to both counts. During the course of trial the State amended the indictment to change the reference to the year in which the offences were alleged to have taken place from 1998 to 1997. The trial judge allowed the amendment because the accused failed to show that the amendment would prejudice or otherwise seriously affect the merits of the accused's defence. The accused's defence was one of general denial of alleged events and it did not really matter whether the offences were committed in 1998 or in 1997. The accused confirmed that when the trial judge put the effects of the amendments to him and had him re-arraigned. The evidence, given under oath, of the girl victim under the age of 10 was also not corroborated by any third party.

Held

1. In the interests of saving time and costs, the trial judge is at liberty to re-arraign the accused during the course of the trial when the amendment is made to the indictment and adopt the evidence against the accused up to the point of the amendment where the conduct of the defence is not seriously affected. Where it is seriously affected by the amendment, witnesses may be recalled to give evidence and be cross-examined. The State v Francis Kumo Gene [1991] PNGLR 33 discussed; The State v John Lausi unreported (16/02/2001) N2091 applied.

2. The trial judge is at liberty to allow a nine year old girl to give evidence under oath upon being satisfied that she appreciated the nature of taking the oath. Rolf Schubert v The State [1979] PNGLR 66 considered.'

3. The accused is required to put his defence to the State's witnesses in cross-examination and failure to do so has the effect of treating claims as recent inventions and unreliable. The State v Tony Pandua Hahuahori (19/02/2002) N2185 applied.

4. The victim must have made the complaint at the first opportunity which reasonably presented itself and it is not a question of the length of time per se. The State v Stuart Hamilton Merriam [1994] PNGLR 104 applied.

5. In cases of uncorroborated evidence of the victim the court should warn itself that it is not safe to convict on the uncorroborated testimony of the complainant but that it may do so upon being satisfied of its truth beyond reasonable doubt. McCallum v Buibui [1975] PNGLR 439; The State v Guma [1976] PNGLR 10; The State v Tovue [1981] PNGLR 8; R v Noboi-Bosai [1971-72] PNGLR 271; Peter Townsend v George Oika [1981] PNGLR 12; and Deidei v The State [1990] PNGLR 458 considered.

Papua New Guinea cases cited

Deidei v The State [1990] PNGLR 458.
Peter Townsend v George Oika [1981] PNGLR 12.
Rolf Schubert v The State [1979] PNGLR 66.
The State v Francis Kumo Gene [1991] PNGLR 33.
The State v Micky John Lausi (2001) unreported N2091.
The State v Stuart Hamilton Merriam [1994] PNGLR 104.
The State v Tony Pandua Hahuahori (2002) unreported N2185.

Other cases cited

Browne v Dunn (1893) 6 R 67(HL).

Counsel

M Olewale with Ms. Zurenoc, for the State.
D Koeget and Gavara-Nanu, for the accused.

30 April 2002

Kandakasi J You pleaded not guilty to one count of attempted unlawful carnal knowledge of a girl under the age of ten and another count of unlawfully and indecently dealing with a girl under the age of sixteen.

Amendments and Related Practice and Procedure

The State initially alleged that these offences took place between 1st March and 31 September 1998. However, after the evidence of the first State witness and victim (named but withheld for her protection) and her mother and half way through the third state witness, this was amended despite your objection. That amendment saw the reference to the year 1998 changed to 1997.

I allowed the amendment because you failed to show that the amendment would prejudice or otherwise seriously affect the merits of your defence. The main reason for your objection to the evidence was that,the application was made at a very late stage of the proceedings. That affected the indictment to which you pleaded. By reason of that, it was argued for you that, all the witnesses that were already called and completed for the State may have to be recalled and that would take much of the Courts time unnecessarily.

Section 535 (1) of the Code deals with amendments to indictments. That section reads:

"535. Amendment of indictments.

(1) If on the trial of a person charged with an indictable offence—

(a) there appears to be a variance between the indictment and the evidence; or

(b) it appears that—

(i) any words that ought to have been inserted in the indictment have been omitted; or

(ii) any words that ought to have been omitted have been inserted, the court may, if it thinks that—

(c) the variance, omission or insertion is not material to the merits of the case; and

(d) the accused person will not be prejudiced in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable."

Brunton J (as he then was) considered this provision in The State v Francis Kumo Gene [1991] PNGLR 33. He said and I agree that, when an application for an amendment is made two legal questions arise. These are:

"1. Can it be said that the variance between the indictment is not material to the merits of the cases?

2. Can it be said that the accused person will not be prejudiced in his defence on the merits?"

After discussing a number of overseas cases on point, he summarised the effect of those authorities at p.45 in these terms:

"Amendments to the indictment before the arraignment may not result in any prejudice (see R v Hall [1968] 2 QB 787; (1968) 52 Cr App R 528); similarly with an amendment after arraignment but before the jury was empanelled (R v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348). If an amendment takes place during the course of the trial (at the end of the prosecution opening) then if the amendment is substantial the arraignment should be repeated: see R v Radley (1973) 58 Cr App R 394. But, if it is not possible to say that the conduct of the defence up to the close of the prosecution case could not have been hampered in some way by the fact that the indictment did not include some amendment made to it at that point in time, an appeal court may not be satisfied that the amendment caused no injustice: see R v Thomas [1983] Crim LR 619 cited in Archbold: Pleadings, Evidence and Practice in Criminal Cases, 43rd ed (1988), vol 1, par 1.68.

In that case, the application to amend related to ownership of property which was allegedly misappropriated by the accused. The application was made at the end of both the prosecution and defence cases but before verdict. The Court was of the view that the application was made very late and that, if granted, it would prejudice the accused and would seriously affect the merits of the defence. It was thus refused.

Before the above case, I discussed in detail the power of amendments in District Courts in an article I had published in the Melanesian Law Journal, Vol.16, 1988, p. 115, headed "The Power of Amendments in the District Courts". That article was a reaction to the Boroko District Court allowing an amendment to an information and conviction on the amended information, much to my objection on behalf of a client. After an examination of all the authorities I was able to find at the time of the publication, I concluded at p. 142 that the power to amend:

"... should be exercised only in cases where justice of the case (s) require it; whether it be for a defect or a variance. The cases ... should be used as useful guides in cases of defects and variances to decide whether or not to amend.

... the power should be exercised if need be at an earlier stage in the trial process, preferably, well before the actual hearing of the case, in the interest of justice not to take the defendant by surprise.

If there is an amendment after a plea has already been taken then the accused should always be re-arraigned because the information and the charge therein is in a new version."

In your case, the application to amend was made before the close of the prosecution's case. The evidence called was at variance with the indictment, especially on the reference to the year in which you were alleged to have committed the offences. Your defence was one of general denial. It, therefore, did not really matter whether the offences were committed in 1998 or 1997. You denied them any way. You confirmed that when I put the effects of the amendment to you and had you re-arraigned. You objected to the application to amend only on the basis that it was made late in the proceedings after you had pleaded to an indictment that spoke of the alleged offences taking place in 1998 and not 1997. You did not show how the amendment if allowed, would prejudice you and or affect the merits of the case. In these circumstances, I decided to allow the amendment.

Then, in line with established practice and procedure following s 535 (2) of the Code and authorities on point, I put the effect of the amendments to you and had you re-arraigned. You maintained your plea of not guilty. I then adopted the evidence, called up to the point of the amendment, as evidence against you under the amended indictment with the agreement of your lawyer, going by s 535 (2) and The State v Micky John Lausi (16/02/01) N2091. I consider this practice preferable in the interest of saving time and costs. This should always be the case in cases where the conduct of the defence is not seriously affected. That would avoid the re-calling and cross-examination of witnesses, which may result in unnecessary wastage of time, costs and might even result in unnecessary embarrassments. If, however, the conduct of the defence is seriously affected by an amendment, witnesses may be re-called to give evidence and be cross-examined, particularly on the effects of the amendment.

The case against you

The State called 4 witnesses, including the victim, to give evidence against you. The first witness was the victim. Her mother and then her grandmother followed her. The final witness was a medical doctor who medically examined the victim in 2000.

The victim was aged 5 at the time of the alleged incident. She is now 9 years old. Counsel for the State informed me that the witness was advised of the two ways in which she could give her evidence; (1) evidence under oath or; (2) an unsworn statement. Having being so advised, she understood the effects of giving evidence under oath and decided to give her evidence in that way. I repeated the advice and caution, going by authorities like Rolf Schubert v The State [1979] PNGLR 66. Upon being satisfied that she appreciated the nature of taking the oath, I allowed her to give her evidence under oath. This was reconfirmed when she was cross-examined by your lawyer who asked if she knew that taking the oath on the Bible and giving a false story would result not only in going to jail but also that God would punish her. She answered that question in the affirmative.

The victim clearly identified you in the accused box as Moki Lepi. She said you lived with her grandparents at Tokarara after having sold your house at Hohola. She and her small brother, Clyde, and a cousin brother, Mecko, would get dropped off at her grand parents' house early in the mornings during working days and sometimes during the weekends. She said you used to tell her small brother Clyde and cousin brother Mecko to go out of the boy's room. She would try to follow them but you would stop her. That usually leaves her and you alone in the room. Whilst alone in the room with her, you usually take her hand and put it into your trousers through your open zipper and cause her fingers to touch your penis. Other times you usually remove her pants and put your fingers into her vagina. On other occasions you used to hug her and kiss her as if she were your wife. On each of these occasions she always tried to run away, but you used to stop her and told her not to tell her parents or anybody else and that you would continue to do that when she grows up.

On one occasion she recalls you taking her into the laundry area in front of the house. There you removed her shorts and her pants, unzipped your trousers and tried to put your penis into her vagina but were disturbed by someone passing by. Before that, she tried to run away but you would not let her go. She felt wetness in her thighs and her vagina was painful.

Again on another occasion she recalls her grandfather, her small brother Clyde, you and herself going to a store at Tokarara to buy something. That was in her grandfather's vehicle. After parking the vehicle, the grandfather and Clyde went to the store and she tried to follow them. But you stopped her and put her back in the back seat of the car. There you proceeded to remove her small trousers and pulled her pants down to her knee level and put your head between her legs and lick her vagina. You stopped when you realized that the grandfather and the others were returning to the vehicle and she pulled her panties and shorts up herself.

Other times she said you used to lick her breast area and she used to feel pain. This was due to you also biting her in the process though not badly.

She said she was able to recall all of these things as happening to her in 1997 when no body was watching. That was the year she was doing her elementary school at the Salvation Army and Boroko. These things happened in the afternoons after work and after she returned from her school sometime after 3:00pm and other times at weekends. She said she was able to recall all of these because she has a very good memory. Her mother who gave evidence of the victim being able to memorize and recite bible verses at her Sunday schools confirmed this.

The victim regards you as an uncle. You are related to her through her grand mother whose sister you are married to. She calls you "Papa Lois" after your daughter's name. You are a nice person to her and she liked you because you always bought her and the other children sweets. You also played a guitar and used to sing God's songs to them and teach them God's songs. The mother confirmed this in her evidence when she said she noticed that you were so close to the children and they were very close to you and that you bought them sweets everyday.

When asked as to why she did not report the incidents to anyone, including her parents and her grandparents, she said she was scared that you might hit her. She also believed that the parents or the grand parents might hit her too. She did not know that her parents and her grandparents or her aunt would have listened to her and come to her aid. She came to learn of that only after the mother spoke to her in the year 2000, when she was given some advice on some of the bad things bigger boys and men would do to girls as she was growing up. She also came to learn of that when the suggestion was put to her in cross-examination.

The victim's mother confirmed your relationship to her and her children, including you being called "Papa Lois" after your own daughter's name. Further, she confirmed the victim's evidence of you having sold your house at Hohola and moving in and staying with her parents at Tokarara. Furthermore, she confirmed the first time she heard of what you did to the victim was in the year 2000 when she was giving the victim some advice on the bad things bigger boys or men would do to girls, especially rape. That is when the victim informed the mother of all that you had done to the victim.

Upon hearing her story, both the mother and the victim cried. Immediately after that, the mother took the victim to the Private Hospital for a medical check up. A medical examination was carried out on 5 October 2000 and a report was done. Thereafter the matter was reported to the police.

The third witness was the victim's grandmother. She too confirmed the victims evidence on your relationship to her and the family, your going to live with her family and that you were very close to the children. She was shocked to learn of the incidents too, as she did not suspect anything like that was going on. She also said, as there were a lot of children, she was busy most of the time. You lived in the boy's room with one of her sons. She went on to state that, one time she knocked on the boy's room. You called the victim's name and opened the door. The victim then came out of the room. Apart from you and the victim, there was nobody else in the room.

The final witness was Dr. Rageau from the Private Hospital. He confirms the victim's mother's evidence of the victim being taken to that hospital for a medical examination and obtaining a report. The doctor, after carrying out an examination of the victim provided a medical report stating his findings. He concluded that the victim's hymen was absent. That was consistent with a sexual assault on her. Under cross-examination, he said he could not determine when exactly the victim was sexually assaulted, but it was sometime before his examination.

Your case

At the close of the State's case, you made a "no case submission" and I dismissed it. You then went into evidence in your defence. You generally denied the victim's evidence and/or claims. You did not specifically deny for instance going in the grandparent's vehicle to a shop at Tokarara and sexually assaulting her after preventing her from following her small brother and her grandfather to a store or taking her to the laundry in front of the grandparents house. You otherwise confirm the good, close and cordial relationship you previously had with the victim, her parents and her grandparents. Your counsel repeatedly asked you in your examination in chief about what could have been the possible reason for the false allegations against you and you consistently maintained that you did not know of any reason. However, under cross examination, which was conducted after an adjournment to the next day, you stated that you sold your house at Hohola for K5,000.00 and without giving any part of that to the victim's grand parents or her parents, you took them to Aiyura and started a project there. That might have caused the victim and her mother and grandmother to come up with the allegations against you. You did not put this to the prosecution in cross-examination.

In your evidence, you also said there was no opportunity presented to you to commit any of the acts alleged against you because there was always someone at the house. You were at work Mondays to Fridays and some Saturdays when there was demand. You usually left the house at 6:00a.m. each of these days and got to the house around 5:30 and 6:00p.m. You went on to say that since you did not have a key to the house, you also made sure that there was someone at the house before getting in. Further, you said throughout the period you were with the victim's grandparents, a schoolboy, Nabie, was always around in the boy's room where you and him stayed. The victim and the other children usually come into the room to sing songs with you. There was not a time when Nabie left the room and you were alone with the victim. Furthermore, you said on Saturdays when you were not at work, you went to your house at Hohola, then under rent, and carried out maintenance work.

Your claim of Nabie always being in the room, you not having the key to the house and you being out of the house on Saturdays when not at work were not put to the victim and the other State witnesses in cross-examination. Also, you did not put to the victim and the other witnesses the selling of your house at Hohola and setting up a small project at Aiyura from the proceeds, which could have caused the victims and her relatives to make the allegations against you.

Submissions

Your lawyer submitted in line with your evidence, that the allegations against you were not true and that they have been fabricated against you by the victim and her mother and grand mother. He also submitted that the victim was coached to give her evidence against you. Further, he submitted that in sexual offence cases such as yours, there must be corroboration of the evidence of the victim. In this case, he argued that there is no corroboration. Furthermore, he argued that the victim failed to complain about the incidents until almost 3 years later. He ultimately submitted, then, that these factors cast some doubt on the credibility of the allegations against you. He urged me to accept your evidence as credible and act on it. In the end he submitted that, I should reject the claims against you and return a verdict of not guilty on both of the charges against you. At the same time, he concedes to there being no evidence of the reason or motive for making these allegations against you.

The State concedes to there being no direct corroboration of the victim's allegations or evidence and the delay in complaining to the parents or the grandparents or anyone by the victim of what you were alleged to have done to her. It argues, however, that the law still allows a Court to proceed to conviction even on an uncorroborated evidence of the victim of a sexual offence and even on a complaint that is made years after the incident. The Court's attention was drawn to the case of The State v Stuart Hamilton Merriam [1994] PNGLR 104, to support its submission.

The issues for me to determine therefore are these:

1. Which of the witnesses called by the parties in this case is credible and therefore reliable?

2. Whether the victim's evidence is uncorroborated and therefore unsafe to proceed to conviction on her evidence alone.

3. Whether the victim failed to report or complain about any or all of the assaults on her at the earliest reasonable opportunity and that her claims are unreliable.

First issue: Credibility of witness

The first issue requires an examination and assessment of each of the witnesses' demeanors in the witness box, any inconsistencies in their evidence, and having that checked against what is reasonable in the circumstances.

I start off with the victim and her evidence. She is 9 years old now but 5 years old at the time of the alleged offences. She says she has an excellent memory. That is evidenced by her ability to memorize and recite bible verses at Sunday school according to her mother, the second State witness. Your counsel, Mr. Koiget, a very competent and experienced lawyer thoroughly cross examined the victim at length. Despite her age, the victim demonstrated a very good ability to understand the long list of questions that were put to her and appropriately answered them. Where she had difficulty, she politely asked for the questions to be repeated and or translated into pidgin. She was neither evasive nor insistent upon a particular answer. She gave me the clear impression that she was well disciplined and knew about God very well. She knew very well and accepted that if she told a lie under oath, God would punish her apart from the risk of going to jail for it. She obviously had a good knowledge and foundation in the Bible and believes in God. This I find was possible because both her maternal grandparents work for the Summer Institute of Linguistic Studies, which is a Christian institution and they go to church every Sunday. The victim goes to Sunday schools, also, and recites Bible verses with her mother.

Most of your lawyer's cross–examination of the victim centered on the victim's failure to report the incident promptly to her parents or anybody else. When asked of the reasons for that, she consistently maintained that she feared that both you and her parents or grand parents might hit her. She did not realize that her parents and her grandparents would have supported her until her mother spoke to her in the year 2000 about the bad things such as rape, bigger boys or men would commit against girls. She also came to realize that her parents and her grandparents would be supportive of her when your lawyer made that clear to her in cross-examination.

The victim gave clear evidence that she liked you. She and the other children were very close to you. You bought and gave her and the other children sweets almost every day. You played God's songs and read Bible verses with and to them. You were regarded as an uncle. The mother, who was the second State witness and the victim's grand mother, who was the third State witness, supported the victim on this part of the evidence. You played and taught God's songs. Even your own evidence supports her on this. Apart from the sexual assaults on her, the victim does not recall you doing any other bad things to her. She did not know at the time of the alleged offences that what you were doing to her were wrong and that, if she reported that to her parents, or her grandparents, they would come to her support.

Given these, I find that the victim had no reason to put up a false story against you. She impressed upon me as a truthful witness. If she was coached, as was submitted on your behalf, she could have broken down under cross-examination given her tender age, but she did not. There could also have been some trace of inconsistency in her evidence, but there is none in any material respect. I do, of course, note your lawyer's submission that since the medical evidence speaks of the victim's hymen not being present there should have been some evidence of blood but there is none. Based on this, you argued that somebody else penetrated the victim's vagina, as you were only charged with attempted unlawful carnal knowledge.

There are two things wrong with this submission. First, in fairness, this should have been put to the victim in cross-examination but was not done, following the rule in Browne v. Dunn (1893) 6 R 67 (HL). In any case, the victim did not give any evidence of a sexual intercourse between you and her. She spoke clearly only of attempts. She also gave evidence of you using your fingers against her vagina. Further, she spoke of feeling wetness in her panties and thighs on some of the occasions of your indecent treatment of her. The wetness could have been caused by blood or some other fluid discharged during the course of you so treating her.

Secondly, no evidence was produced to show that blood must always be present when the hymen of a young girl, such as the victim was at the time of the offences gets broken. A medical doctor was called and was available for cross-examination but was not asked. Instead, I am asked to take judicial notice. I am no expert in the field of human anatomy and how they function. I have not been referred to any authoritative publication or judgement that allows me to take judicial notice. I therefore find that the lack of evidence of blood being present at one or more of the offences committed against the victim does not affect the credibility of the victim's evidence.

Now, getting back to the assessment of the victim's credibility, I am of the view that if she was coached as you submitted, she could have also been coached to give the precise dates and time at which the alleged assault on her took place. There is, however, no evidence of these aspects save only for the year 1997, because that was the year in which the victim recalls doing her elementary school at Salvation Army. If there was any coaching I find that may have been only to the extent of helping her to recall and tell what was done to her almost three years back. Given the period of time that had lapsed and the victim's age, both at the time of the incident and at the time of revealing them, some degree of assistance was no doubt required to help her to recall and describe them and tell that to the court without creating a story for her to tell the Court. I find her evidence both credible and reliable. I therefore accept her evidence.

The next witness for the State was the victim's mother. She, too, gave evidence in support of having no personal grudges or difference with you. Your belated claim under cross-examination of having sold your house at Hohola and using the proceeds to set up a project in Aiyura, without sharing it with the victim's parents or her grandparents as a possible reason for the allegations against you were not, in fairness, put to this witness or any of the other State witnesses. So as far as this witness is concerned, you have nothing against her and vice versa.

The victim was this witness's first child and daughter. She was just experiencing motherhood over a daughter that was growing up. As you were very close and good to the children, she did not suspect anything against you. You were a good uncle to the children and the witness accepted you as a good Christian friend and brother. She came to learn of what you had done to the victim in the course of giving the victim an advisory talk of the bad things, especially rape, that bigger boys or men commit against girls. That has to be contrasted with becoming suspicious and setting out to get the victim to confirm whether or not the incidents described by the victim in fact occurred.

She was ably cross-examined by your lawyer on her evidence. She did not evade any of the questions asked. She answered the questions that were asked appropriately and truthfully. For example, when she was asked the general question whether the victim plays with some bigger boys in Gordons, she answered yes. Obviously, your lawyer was trying to lay the foundation for his argument later that some other person may be responsible for the sexual assaults on her daughter. There was no question in cross-examination that specifically questioned the credibility of this witness. For example, nothing was asked that might suggest that she is a liar or that she is used to telling lies. On the evidence before me, I find that she is a good Christian. Her taking the victim to Sunday schools, where the victim memorizes and recites Bible verses, is evidence of this.

I find no inconsistencies in her evidence. There is, however, an inconsistency in relation to the usual whereabouts of her mother (the victim's grandmother) on Saturdays. This witness said her mother usually goes to the market. The mother says she usually stays home. I do not consider this inconsistency serious enough to cast a doubt on the whole of her evidence. The witness had her own house but at times she stayed in at her parent's house at Tokarara, depending on her shift duties. The witness was speaking from the times she was at the house and was able to recall. In any event, the only relevance this part of the evidence serves is in the area of whether or not you had the opportunity to commit the offences. I will address that issue a little later. For now, I find this witness truthful and credible. I, therefore, accept her evidence.

The third witness for the State was the victim's grandmother. She, too, has no personal grudges against you. Your belated claim of having sold your house at Hohola and not sharing the proceed, and setting up a small project in Aiyura as a possible reason for the allegations against you was not put to this witness in cross-examination. As far as she was concerned, you were a very good brother-in-law to her because you are married to her younger sister. You are also regarded as a good Christian brother. She confirms being home most of the evenings including Saturdays. At the same time, however, she says she was busy most of the time and did not pay any particular attention to any particular child as to how they were doing. She did not suspect you of doing anything wrong. She was, therefore, most surprised to learn of the incidents almost three years after their occurrence.

I find this witness also truthful after observing her demeanor in Court and I notice that she was not evasive in her answers to questions put to her. I accept that only in Court under cross-examination, she spoke of having found you and the victim alone in the boys' room one evening. Your lawyer argued that because she did not make this known to the police when she gave her statement, it is demonstrative of this witness making up a story against you. Whilst I accept that she should have stated this to the police at the time of giving her statement to them, I do not accept that this is an indication of the witness deliberately telling lies in Court. I do so on the basis of the lack of any evidence providing a reason for this witness to come into court and give a false testimony against you.

The witness has been in the employ of the Summer Institute of Linguistics for a long time. She attends church service every Sunday and was sworn to tell the truth on the bible. Given her Christian background, I am sure she appreciated the dangers of telling a deliberate lie under oath. Besides, there is neither any evidence nor was a suggestion put to her under cross-examination that she is used to telling lies.

I accept her explanation that she simply forgot to tell the police that part of her evidence when she gave her statement to them. This I note, denied you of early notice of that part of the evidence and prepare your defence accordingly. However, given your general denial and you had only yourself to call in your defence, I find that this made no difference to your defence. Indeed, you denied that part of this witness's evidence, without anything further.

As for the final State witness, Dr. Onne Ragaeu, you raised no argument against an acceptance of his evidence. The only argument you made is that the doctor's report and evidence is inconclusive as to you being responsible for the absence of the victim's hymen at the time of the doctor's examination. I, therefore, accept his evidence in full.

In relation to yourself as a witness, I do not find you as a truthful and reliable witness. In a bid to prove your innocence, you gave evidence that is not reasonable, or logical. First, you provided no reason whatsoever that could have caused the victim, her parents and her grandparents to make these serious allegations against you. I find this very critical given the very good and cordial relationship you enjoyed with them apart from being related to them through marriage. In cross-examination, you tried to provide a reason, namely selling your house and not sharing the proceeds before starting up a small project in Aiyura. You did not say that in your examination in chief. Also, you failed to put this to the State's witnesses in cross-examination. The law requires you, as an accused person, to put your case to the State's witnesses in cross-examination. A failure to do so has the effect of treating such belated claims as recent inventions and unreliable: See The State v Tony Pandua Hahuahori (19/02/02) N2185 at pp. 11 – 13 where I discussed this principle in the context of raising an alibi.

Besides, I fail to see how the reason you gave could justify the making of the allegations against you, bearing in mind the age of the child and the fact that her mother was on a paid employment. Why would the victim, a very young child, who regarded you as a good person she liked and called an uncle,turn around for no good reason to make serious allegations against you? Similarly, why would she make such allegations against you under oath fully appreciating the risks of giving a false testimony under oath, including punishment by God? How could a 9-year-old child describe in detail things done to her on several occasions when she was 5 years old, if they did not occur in fact? If she was coached, what is the reason for her not breaking down under strenuous and long cross-examination? You provided no answers to these questions.

Secondly, you tried to show in your evidence and you argued that there was no opportunity presented for you to commit the various acts you allegedly committed against the victim. In so doing, you gave evidence which I find hard to accept, because they are unreasonable or illogical and out of reality. You said Nabie, an uncle of the victim, was always in the boys' room where most of the acts allegedly occurred. You stated that at no time you were alone in that room with the victim because Nabie was always in the room. I wonder whether Nabie ever went to the bathroom to take a shower or go to the toilet to relieve himself or the dining room to have his meals or just step out of the house to catch some fresh air? I wonder, also, as to whether Nabie was a normal human being, if indeed he always spent all of his time in the boys' room? I also wonder whether he had any friends at all with whom he might have gone out?

Finally, you made general denials of the evidence against you. You said nothing that was specific to the allegations and the evidence against you. For example, in relation to the victim's evidence of you taking her into the laundry area and attempting to have sexual intercourse with her, you simply denied it. You did not say for instance, that you have not at any one time taken her into the laundry area. Similarly, you did not say, in relation to the incident in the grandfather's car, that you have never been in the vehicle with the victim at any one time. Instead, you tried to give reasons as to why you could not have done those acts or were not seen doing those acts. In the case of the laundry instance, you said it was in the front of the house and that you could have been easily seen. As for the incident in the car, you said the vehicle is not tinted.

In most sexual offences, and more so in such offences against children, these offences are committed in secret. The victim clearly stated in her evidence that you committed the offences against her when there was no one watching. I therefore find your explanations very weak and unconvincing.

Now, based on the evidence I decided to accept, I find that you committed the offences against the victim as she described in her evidence. The medical evidence of Dr. Rageau who says the victim's hymen was not present when he examined her on 5th October 2000, supports her. He concluded in the absence of any evidence to the contrary that this was due to the sexual assault on her in 1997. In so finding, I note too that the doctor said he could not precisely connect the absence of the victim's hymen to the alleged sexual assaults on her in 1997, but that was the only conclusion open to him, given the only explanation available to him.

This then begs the question: can I safely proceed to convict on that evidence in view of the second and third issues? I therefore proceed to consider those issues now.

I find persuasion in the discussion of the relevant principles and their history by my brother Justice Sakora in The State v Stuart Hamilton Merriam supra, pp. 110 – 113 in relation to both issues. Firstly, in relation to the need for complaint at the earliest reasonable opportunity, His Honour said and I agree that:

"The requirement for reporting or complaining, usually expressed as recent complaint, is normally associated with sexual offences such as rape. The basic reason for the emergence of this requirement may lie in some early recognition of the undoubted suspicion - in the intensely and traditionally chauvinistic cultures of yesteryear - which fell at common law on a woman who failed to complain within a short time of an outrage perpetrated upon her. And this was necessitated, in part, by the fact that, by their very nature, offences of this nature would be very unlikely to produce direct eye - witness evidence.

...

Whatever its origin, the phenomena survives into modern law. So the requirement in sexual offences is only that the complaint be made voluntarily and at the first opportunity reasonably afforded.

...

Whether the complaint was "recent" or not is a question of fact and degree in every case. Certainly, it was not necessary that it was made within the comparatively short period required for admissibility under the res gestae (contemporaneity) rule.

On the other hand, complaint must have been made at the first opportunity which reasonably presented itself. Thus, it is not a question of the length of time per se. And whilst we are concerned with an offence under s 210 of the Criminal Code, which does not distinguish between adults and minors, the nature of the allegations is such that this is a typical child abuse case - in the same mould as incest, or buggery by the male parent, male relatives, or adult friends of the family, or by other adults in positions of trust, eg, priests or teachers. It is in this context that the requirement of complaint or "recent complaint" must be appreciated."

(Emphasis mine)

The case before His Honour was one of sodomy of an eight or nine-year-old boy. The boy did not complain until ten years after the date of the offence. His Honour found as reasons for not complaining earlier that victim was 8 or 9 years old, shy, frightened and afraid he might not be believed and would probably be laughed at.

His Honour then noted there were documented accounts of why children and victims of abuse, sexual or otherwise, had difficulty complaining about such abuses for a host of reasons. They include the victims not being aware that what was done to them are criminal wrongs because of their age until later. The reluctance to report is greater for children than it is for adult women.

In the case before him, His Honour found that the earliest opportunity the victim had to complain was the time he first revealed what had happened to him ten years back. There is no record of this going on appeal to the Supreme Court and being overturned. I am, therefore, of the view that this is a correct statement of the law and I accept and apply it in this case.

In the case before me, I find that the earliest opportunity the victim had was the time when she revealed what had happened to her in 2000, in the course of her mother giving her some advisory talk on sexual offences such as rape. That was almost three years later, in the year 2000, as opposed to 10 years. The victim had a reason not to complain anytime earlier than that. She was under the impression that you would hit her because you told her not to tell anybody including her parents, or that her parents or grandparents would hit her if she told them. There can be no doubt that she did not appreciate the fact that the things done to her were criminal and wrong. Also, I am of the view that she considered it not good for her to say things against you. This is because, to her, you were a good uncle, always playing and singing God's songs and to her parents and grandparents a Christian brother and friend. No doubt, her Christian upbring must have taught her that all Christians are good people and it is not good to talk against them or other people. As she said under cross-examination, she did not know that her parents and grandparents would come to her support if she reported the incidents to them until her mother assured her in the mother's 2000 advisory talk with the victim. That is when she came to appreciate that what you did was wrong and that you need to be stopped. Indeed, when your lawyer asked why she came to give evidence against you, she said what you did was bad and must be stopped.

In relation to the issue of corroboration, I note, as did my brother Justice Sakora in the Stuart Hamilton Merriam case, that it is a truism that the younger the victim, the lesser the chances of the perpetrator being caught. This is because these kinds of offences are often committed in secret. As His Honour said:

"So, invariably there are no direct independent witnesses in these offences. But corroborative circumstantial evidence, as explained by Cross (supra), will suffice. In the two Queensland cases of R v Witham [1962] Qd R 49 and R v Walczuk [1965] QWN 63 n50 and the High Court of Australia case of Kelleher v R [1974] HCA 48; [1974] 48 ALJR 502 (Barwick CJ at 505), the less rigid rule of practice ensures that in all cases of sexual offences the Court should warn the jury that "it is not safe to convict on the uncorroborated testimony of the complainant but that they may do so if satisfied of its truth". Barwick said that a jury "may act on the words of the woman alone but should exercise considerable caution before doing so, because of the ease with which charge is made and the difficulty which may attend its rebuttal."

Under the English common law, there has to be warning of the jury in all cases of sexual offences, even where there is ample evidence corroborating that of the complainant (Cross, supra). In PNG, there have been lines of decided cases on the subject.

In McCallum v Buibui [1975] PNGLR 439, CJ Frost acknowledged the rule of practice that in a sexual charge the tribunal of fact (the Judge without a jury) should warn itself or take into account the danger or risk of acting upon the uncorroborated evidence of the woman as to the elements of the charge. Similarly, in State v Guma [1976] PNGLR 10, the Court held that the requirement for the Judge to warn himself was a rule of practice falling not far short of a rule of law. See also the cases of State v ToVue [1981] PNGLR 8 (per Kearney DCJ) and the pre - Independence case of R v Noboi - Bosai [1971 - 72] PNGLR 271. The PNG Court should make it clear that it has the risk in question in mind, even when it is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond reasonable doubt. The rule is a sound one on the basis that justice must be seen to be done."

(Emphasis mine)

This clearly is the law based on the authorities cited in the passage. The only additions to the list of the authorities cited are the Supreme Court judgements in Peter Townsend v George Oika [1981] PNGLR 12; and Deidei v The State [1990] PNGLR 458.

In the present case, I warn myself of the dangers of proceeding only on the evidence of the victim in relation to the particular acts of indecent treatment of the victim and the attempted unlawful carnal knowledge of her by you. For example, she might be mistaken, or that is not exactly what happened. Or somebody else might have done these things to her. In your behalf, your lawyer urged me to accept that children, such as the accused, do not easily remember and describe such dreadful incidents some years back when they were very young. That is a general position. Some children, however, remember things happening to them or for them when they were very small. In these circumstances, it was incumbent upon you to establish by appropriate evidence that the victim in this case did not have any good memory and was very poor in recalling and describing things that happened to her when she was very small. The evidence, which you did not rebut in any way, is that the victim has a very good memory, as she memorizes Bible verses and recites them at Sunday schools. I observed her demeanor and the way in which she gave her evidence, which gave me the clear impression that she was very bright. She answered complicated questions well. Indeed, of the witnesses I have heard from so far, she was the best ever witness for the reasons given.

I am, therefore, satisfied beyond any reasonable doubt that she was telling the truth. She made the complaint at the earliest opportunity she had. She is not corroborated on the particular acts of her being sexually assaulted or indecently being dealt with because of the very nature of the acts complained of and the fact that these acts were committed "when nobody was watching", to use the words of the victim. The reasons for my rejection of your evidence also lends support to the conclusion that between the victim and you, the victim was telling the truth. In summary, I find your evidence was an attempt of exculpating yourself in a way that was not logical or reasonable. On the basis of the victim's evidence, I find, beyond any reasonable doubt, that you committed the acts she testified in court of. Accordingly, I return a verdict of guilty against you on both counts. An appropriate warrant of commitment pending a decision on sentence will be issued forthwith.

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Public Solicitor.