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State v Angosiwen (No 1) [2004] PGLawRp 59; [2004] PNGLR 432 (18 June 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

FRANCIS ANGOSIWEN
(NO.1)

WEWAK: KANDAKASI J

08 & 18 June 2004

CRIMINAL LAW – PRACTICE & PROCEDURE – Application to question prosecutrixed on past sexual activities – Application not in accordance with prescribed procedure – Application declined – Effect of – Same effect as failure to give notice of alibi and failure to comply with rule in Brown v. Dunn – s. 37H of Evidence Act.

CRIMINAL LAW – Verdict – Incest with biological daughter by father – Medical evidence confirming sexual penetration – No credible evidence of victim being sexually penetrated by a different person – Inconsistency in accused evidence – Accused evidence found incredible – Guilty verdict returned – s.223 of Criminal Code and s. 37H of Evidence Act.

Facts

The accused was charged on one count of incest with his biological daughter contrary to s.223 of the Criminal Code Act. He was found guilty and convicted.

Held

1. The accused's application to cross examine the prosecutrix on her past sexual behavior or activities did not conform to the prescribed requirements under s.37H fo the Evidence Act.

2. On the evidence the state has established its case against the accused that he had engaged in an act of sexual penetration of his daughter contrary to s.223 of the Criminal Code Act.

Papua New Guinea cases cited

Application Pursuant to s.155(4) by John Mua Nilkare [05/04/97] unreported SC536.
Garitau Bonu & Rosanna Bonu v The State [24/07/97] unreported SC528.
Gibson Gunure Ohizave v The State [26/11/97] unreported SC595.
Jimmy Ono v The State [04/10/02] unreported SC698.
John Jaminan v The State (No.2) [1983] PNGLR 318.
Lepanding Singut v Kelly Kinamun & Ors, Albo Enterprises Pty Ltd, Fedelis Agin, Papua New Guinea Banking Corporation, Paul Piru and John Kil (2003) N2499.
Paulus Pawa v The State [1981] PNGLR 498.
Rabaul Shipping Limited v Rita Ruru (08/12/00) unreported N2022.
SCR No. 1 OF 1980; Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) unreported N2266.
The State v Eki Kondi & Ors (No.1) (24/03/04) unreported N2542.
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
The State v Kevin Anis and Martin Ningigan [07/04/03] unreported N2360.
The State v Luke Sitban [07/06/04] unreported N2572.
The State v Marety Ame Gaidi [01/08/02] unreported N2256.
The State v Onjawe Tunamai [29/04/03] unreported N2365.
The State v Peter Malihombu [29/04/03] unreported N2365.
The State v Tauvaru Avaka & Anor [02/11/00] unreported N2024.
Thomas Kaidiman v Papua New Guinea Electricity Commission [20/05/02] unreported N2343.

Other cases cited

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

Counsel

J. Walai, for the State.
L. Siminji, for the accused.

19 June 2004

Kandakasi j. You pleaded not guilty to one charge of incest with your biological daughter on 15 August 2000 at your village, Tauneges, here in the East Sepik Province. The State therefore, called two witnesses, the victim (named) and Kun Kumbau her maternal uncle, in a bid to establish the charge against you. In your, defence, you took the stand and gave a sworn testimony and did not call any other person to support you.

In addition to the sworn oral testimony, the State also admitted into evidence, your record of interview (exhibits "A1" and "A2") and a medical report dated 22 September 2000 (exhibit "C").

The Offence and its Elements

Section 223 of the Criminal Code as amended creates and prescribes the penalty for the offence of incest. The provision reads:

"223. Incest.

(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption.

(3) No person shall be found guilty of an offence under this section if, at the time the act of sexual penetration occurred, he was under restraint, duress or fear of the other person engaged in the act."

To secure a conviction under this section, the State must establish on the required standard of prove, beyond any reasonable doubt, the following elements:

1. A person who;

2. engages in sexual penetration; and

3. with a close blood relative (as defined in sub-s.2).

From the outset therefore, the State has the obligation to prove each of these elements beyond any reasonable doubt. The question then is, has the State proved all of the elements of the charge of incest against you beyond any reasonable doubt?

Only on the evidence the parties produced before this Court, can the Court decide, whether the State discharged its obligation. Accordingly, I turn to a consideration of the evidence before the Court.

The Evidence

In turning to the evidence, I note that a number of important facts are not in issue. The first is the fact that the victim is your biological daughter. Next, she underwent a medical examination 48 hours later. That examination included an examination of her vagina, which revealed a normal vulva, slight crack on right perineum, torn hymen and normal vaginal discharge. On these findings, the medical evidence concludes that, the victim was sexually penetrated.

Another fact not in issue is the fact that, you abandoned, the victim and her mother and another child for ten years. The mother remarried as a consequence of which the victim and her sibling stayed and grew up with their maternal uncles. On your return, you reclaimed the children and the uncles gave them to you without any drama. The victim lived with you until the day of the alleged offence.

There is also no dispute that on the day of the offence, you took the victim and other children to the garden. Later that day, the victim ran away from you to her maternal uncles claiming you forcefully had sexual intercourse with her. You followed her sometime later and an argument and a tussle took place between you and the victim's uncles, where they disarmed you.

What is in dispute is whether you sexually attacked the victim and penetrated her sexually. This requires a close examination of what the witnesses have said in their testimonies, which includes your own. I start the examination with the prosecution's evidence first.

(a) Victim's Evidence

She recalls, going to the garden with you and her small brother. At the garden area, you cleared the land for gardening. Thereafter, you went to the house and returned with an axe. You used the axe to cut down a sago palm tree to look for sago grubs. After that, you and the children went and collected some coconuts. At that stage, she says you told her to go and look for birds eggs. She complied and went in the direction you had indicated, with you following her. She could not find any eggs so she asked you as to where could the eggs be. You said no, then threatened her with a knife, and told her to take her trousers off and she complied out of fear of being hurt, while you removed yours and thereafter proceeded to have sexual intercourse with her. After you finished having sex with her, you warned her not to report the incident to anyone, threatening to kill her if she did. You then forced her to go and take a bath and she did as you threatened to hurt her with the knife.

After the victim had taken her bath, you returned to the house. Later in the evening that day, she tricked you by saying she was going to the toilet and she ran away to her uncles, and reported to them what you did to her. Soon you followed her, got to her uncles house with a knife, and tried to cut her and her uncles. However, the uncles fought with you and eventually overpowered you and disarmed you. You managed to escape to your house.

The next day, the uncles took the victim to the nearest police station where the incident was reported to police. The following day they took her to the Maprik Health Centre for a medical examination.

Under cross-examination, she admitted to knowing a Maxson Baire, who also comes from Tauneges and is a relative. However, when asked about her knowledge of a meeting concerning that person, she said no. Thereafter, you made an application under s. 37H of the Evidence Act for leave to cross-examine the victim about her past sexual activities.

The provision in question reads:

"37H. Evidence of complainant's sexual conduct.

(1) In a proceeding in respect of any sexual offence—

(a) the complainant shall not be cross-examined as to his sexual activities; and

(b) no evidence shall be admitted as to the sexual activities of the complainant, except with the leave of the court.

(2) The court shall not grant leave under this section unless the judge determines, in accordance with the procedures set out in Subsection (5), that the evidence—

(a) is of a specific instance of sexual activity; or

(b) is relevant to an issue at trial; or

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under Subsection (2), the judge shall take into account—

(a) the interests of justice, including the right of the accused to make full answer and defence; and

(b) society's interest in encouraging the reporting of sexual offences; and

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; and

(d) the need to remove from the fact-finding process any discriminatory belief or bias; and

(e) the potential prejudice to the complainant's personal dignity and right of privacy; and

(f) any other factor that the judge considers relevant.

(4) Evidence that the complainant has engaged in sexual activity, whether with the accused or any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant—

(a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or

(b) is less worthy of belief.

(5) An application for leave under this section—

(a) must be made in writing and set out—

(i) detailed particulars of the evidence that the accused seeks to adduce; and

(ii) the relevance of that evidence to an issue at trial; and

(b) must be heard in the absence of members of the public.

(6) The complainant cannot be compelled to give evidence in an application for leave under this section.

(7) If the court grants leave under this section, the judge must state in writing the reasons for doing so."

Amongst others, this provision is very clear, so much so that there is no requirement, in my view, for any technical and detailed consideration and interpretation of the imports of the provision. Where this is the case, it is settled law that, the words used by Parliament in the legislation must be allowed to have their normal and plain meaning and effect. The plain meaning of the words used in this section is very clear.

It is thus clear that, there can be no cross-examination of a complainant or the victim of a sexual offence except with leave of the Court. That leave must be sought by a formal written application setting out detailed particulars of the evidence that accused seeks to adduce and the relevance of it in relation to the issue for trial. The hearing of the application must be to the exclusion of the members of the public. The judge hearing the application is then required to take into account the matters enumerated under subsections (2) to (4). If the judge decides in favour of granting the leave sought, he is required to state the reasons for the decision in writing. This is obviously to avoid prejudice, shame, unnecessary embarrassment and an attack of the victim, purely on his or her sexual preferences and conduct, which might have no relevance to the issues at hand.

I am of the firm view that such an application must be made prior to the trial in accordance with the provisions of subsection (5), so that the trial can proceeded smoothly, without unnecessary diversions by such applications. A prior application and or notice could give the State or the opposing party sufficient time to consider the merits of the application, conduct its own investigations and decide whether to purse a charge against the accused or abandon it. Then depending on its inquiries and the decision it eventually makes, the State properly prepare and respond to the application.

In your case, your lawyer made an oral application after the victim had finished her evidence in chief and was half way through cross-examination. It clearly did not meet the requirements of subsection (5), which I note is in mandatory terms, indicated by the use of the word "shall". The application was not in writing and was made in open Court. Further, the evidence sought to be adduced and its relevance was not clearly made out. In these circumstances, I refused your application.

You then continued to cross-examine the victim. Under cross-examination, she said her smaller brothers, with whom she went to the garden, apart from you, were where the sago palm was at the time you had sexual intercourse with her. You then tried your best to get her to admit that you did not have any sexual intercourse with her but she consistently maintained that you did. Similarly, you tried to get her to admit that the allegations against you were to facilitate her return to her uncles. Again, she did not break down and maintained her story. Finally, you tried to get her to admit that, her uncles and herself were opposed to you taking her and her brothers back especially after you abandoned them for about 10 years. The victim maintained her testimony that when you claimed her and her brother back, there was no objection from the uncles and she and her brother freely came to you and stayed with you thinking that you were a good man. However, when you sexually attacked her, she and her uncles found out that you were not and she went to her uncles.

(b) Kun Kambau

Kun Kambau was the second witness called by the State. He is one of the victim's maternal uncles. He corroborates the victim's testimony particularly in relation to your claiming and taking custody over the victim and her brother without any incident. He also supported the victim's testimony in relation to her going to him and some of her other uncles crying and reporting that you had sexual intercourse with her. He also confirmed you following her to his village, which attracted an argument and a fight with you trying to cut them with a bush knife. He also confirms reporting the incident to the police and taking the victim to the hospital for medical check up as stated by the victim.

Under cross-examination, he said there was a meeting in 2000 that concerned a Maxon and the victim. This concerned an affair the victim was having with Maxon. He agreed that they were caught by Maxon's wife. This resulted in a mediation, resulting in Maxon being asked to pay K30.00 to you. He also agreed to your suggestion that after this incident, you took over the custody of the victim. He also admitted suggestions that, when you took the victim and her brother, he was not happy but there was neither any suggestion nor did he say this resulted in a fight or an objection to the children coming to you as the natural father.

(c) Your Evidence

In your evidence, you simply denied the allegations relating to the sexual attack and eventual sexual intercourse with the victim. You say, the victim was your only daughter and as such, you could not do such a thing to her. You go on to say that you took custody of the victim in August 2000 after she had sexual intercourse with a Maxon. There was some confusion as to when exactly you took custody of the victim by the time cross-examination and re-examination completed. Therefore, the Court asked when you actually took custody of your children including the victim. Your answer was, in 1998, soon after your return from Rabaul. You abandoned the mother and the children because your mother-in-law then always argued with you.

When you took custody of the children, you say the uncles were not happy and they objected because you abandoned them for 10 years and the children grew up with them and thought that, if and when the victim gets married you would get all the brideprice. Also you did not pay them any money for raising your children although you helped them with physical labour. You took custody when the victim got into two different rounds of sexual affairs with a Maxon. After the first incident, you hit her and told her not to repeat it but she did. While under your custody, you say the victim always wanted to go back to her uncles from where she could easily see Maxon who lived closer to her uncles.

On the day of the alleged offence, you say you took the children to the garden and cleared some land for gardening. Later in the afternoon, you all returned to the house. At about 11:00pm,the victim went to her uncles and falsely accused you of having sexual intercourse with you. On hearing her, the uncles called you over to them and you went along. However, when you got there, three of her uncles fought you and you used a knife to threaten them and escaped unhurt and hid in your house.

The next morning, they reported you to the police. They did not do likewise against Maxon.

Submissions of the Parties

At the end of the trial, both parties went into submissions. Both parties agreed that a decision on your guilt or innocence is dependant on which side of the evidence the Court finds credible. Therefore, credibility is the main issue in this case.

You argued for an acceptance of your evidence. In support of that, you pointed out that the victim had a reason to falsely accuse you and then come into Court and testify against you. That reason you say is your abandoning her and her brother with their mother for 10 years and that she wants to continue with a sexual relationship she has already entered into with a Maxon. You also submitted that the victim is the only daughter you have. As such, you could not and did not commit the offence. Further, you submitted that the demeanor of the victim contrasts with yours, in that, you gave straight answers without "beating around the bush".

On the other hand the State argues that your account is incredible and as such the Court should reject it and find in terms of the victim and her witness's testimony. In support of that submission, the State submits that there is no evidence of sexual penetration of the victim by Maxon or any other person. Given that, the medical evidence corroborates the victim's claim of sexual penetration by you. Further, the State submits that you had custody of the children including the victim for about two years before the sexual attack on the victim. As such, if she wanted to return, she could have done so much earlier but she did not. Additionally, the State submits that the victim could not have any motive or reason to accuse you and then come into Court and testify against you, her natural father, unless you in fact did what she alleges.

Assessment of Evidence

Which side of these differing claims the Court should accept is dependant on the credibility of the witnesses and therefore their evidence. Reiterating what I said in the decisions this Court handed down in the earlier part of this circuit, a number of important principles or tests assist the Courts to come to a decision on the issue at end.

In so far as is relevant here, one of the applicable tests or principles is consistencies in a witness' own evidence and other evidence called by a party. In The State v Peter Malihombu [2003] PGNC124, N2365]. I found amongst others that there were a number of inconsistencies in the prosecution's evidence. I found the inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this test. It emerges clearly from these authorities that where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

Another relevant and applicable test is one that runs closely with the consistencies test. This test focuses on testing the evidence given in Court against logic and commonsense. Speaking of which I said in The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266. that:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

The National Court formally stated and applied this test in The State v Gari Bonu Garitau and Rossana Bonu, (Unreported judgment delivered on 24/07/97) SC528, which the Supreme Court affirmed in Garitau Bonu & Rosanna Bonu v The State, (Unreported judgment delivered on 26/11/98) SC595 on appeal from the National Court. An earlier statement and application of this principle is represented by the case of Paulus Pawa v. The State [1981] PNGLR 498.

A further relevant and applicable test for our purposes is one that requires a close examination of the witnesses' performance in the witness box, usually known as the demeanor of the witnesses. The Courts have decided many cases in the past on an application of this principle or test. Examples of cases that readily come to mind are cases like that of The State v. Tauvaru Avaka & Anor (02/11/00) unreported N2024 and Gibson Gunure Ohizave v. The State (26/11/08) SC595.

An additional and final principle or test concerns belated claims of alibi or raising a matter for the first time, without first raising it with the State and or its witness during cross-examination. In the context of a belated claim of alibi the Supreme Court in John Jaminan v. The State (No.2) [1983] PNGLR 318 stated the relevant principles in these terms:

"...[T]he alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight."

I applied this in many cases already, with the latest in this circuit in The State v. Luke Sitban (07/06/04) N2572.

In the case just cited, I also considered and applied another important test. That has to do with the need to put an accused person's defence to the prosecution's witnesses during cross-examination of the prosecution's witnesses. There, I said at pp. 11-12 that:

"The law clearly is that in order for a party's claim to have credibility, he must in fairness, put his case or claim to the other side's witnesses by way of cross-examination. In a number of cases such as The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412, I noted that, that was in effect what is meant by a fair hearing in s.37 (3) of the Constitution, which I considered was a codification of the rule in Browne v. Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. I noted that the Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J, made that clear in the context of a belated claim of alibi.

This principle applies against evidence introduced for the first time in court, without first raising it in a proper notice of an alibi, in the case of an alibi, and in his record of interview, or otherwise, an accused person's response to a charge. The whole purpose of this is to ensure that fairness to both parties prevail and thereby avoid a trial by ambush. The rational behind this rule is for a party conducting the cross-examination, to lay the foundation for the calling of his or her own evidence in rebuttal of the one called by his or her opponent."

Your Case

Having identified these principles and tests as relevant and applicable, let me now consider the evidence the parties called. I start that process with the consistencies test.

There is only one apparent instance of inconsistency in the State's case. Other than that, there are no other inconsistencies in the evidence called by the State. The only inconsistency concerns the suggestion that the victim had a sexual affair with a Maxon. In material respects, the victim was asked under cross-examination whether she was aware of a meeting that concerned this person Maxon. She answered that question in the negative. Your counsel did not take this any further as he realized that the defence did not apply for and obtained leave in accordance with s.37H of the Evidence Act. I will return to this a little later. Let me now complete the consideration at hand.

The second witness called by the State, agreed to suggestions under cross-examination that there was a meeting concerning a Maxon having a sexual affair with the victim. Maxon's wife caught them and Maxon was directed to pay K30.00 to you.

I accept the State's argument that this is not a serious inconsistency casting serious doubts on the credibility of the State's case. The reason for this is simple. By reason of not complying with s.37H of the Evidence Act, you did not ask any further questions and failed thereby to establish the date of the meeting, the nature of the affair, when was the affair, where did that take place and so on. In your record of interview, you mention this but only say that she was "making friendship" as opposed to a sexual intercourse. Similarly, you did not establish whether she was present at the meeting and was therefore in a position to be aware of the meeting.

On the other hand, I find there is inconsistency in your evidence. In your record of interview, you admitted to chopping down a sago palm. In your oral testimony, however, you denied cutting any sago. Further, in your record of interview, you admitted to getting some coconuts as the victim said in her testimony. In your oral testimony, you do not say anything about getting coconuts.

Noting these inconsistencies in your evidence, I proceed now to consider and apply the next test of logic and commonsense accounts. I find the accounts given by the State's witnesses both logical and in touch with commonsense. I note that you failed to take any issue against the State's evidence based on them being illogical or being out of touch with commonsense.

The same cannot be said about your evidence and claims for a number of reasons. Firstly, I do not find your claim of the victim's uncle calling you over to their house after the victim reported you to them convincing. It would have been most probable for the uncles to react immediately by coming over to you and attack you, given the pre-existing fact of your abandoning her, her brother and their mother and you not paying anything over to them before taking custody of the children. Instead, your claim is that they merely called you over and when you got to their place, they attacked you. I do not find this logically happening. Instead, I find that you eventually, discovered the victim missing from the house and followed her to her uncle's place. By the time you got there, she had already reported you to them. On realizing what the victim had done, you tried to cover that up by attacking her and her uncles. If this did not happen, then I take it that the uncles attacked you based on the report they received from the victim.

Secondly, if indeed the victim was looking for an excuse to go back to her uncles and to continue her relationship with Maxon, she could have left long before the date of the offence. According to your own evidence, you took custody of her and her brother in 1998. The incident took place on 12 August 2000. Hence, she was under your house and care for almost 2 years. There is no evidence of any animosity between you and her during this period, that might have caused her to take such a big false claim to get away from you. The only thing that has happened according to your evidence is that Maxon had an affair with the victim on an unspecified date, time and place and you hit her and told her not to do that again but she did. Again, it is not clear when she had this second affair and where. Your vague suggestion is that all this happened in August of 2000 as well. Although you are able to recall 12 August very well, you are not able to recall the other significant dates as indicated herein. Even if the victim did have such an affair with Maxon, how could she come up with you having sex with her story rather than something else or just simply go. You do not provide any satisfactory answer to this question.

Thirdly, you said you did not pay anything to the victim's uncles for looking after her and her brother but you say you did provide them with physical labour. I find this rather interesting. Normally, when a husband and wife separate and go their different ways no meaningful dealings between their respective relatives subsist. Usually they would sever as at the time of the marriage or union breaking up. Your suggestion runs contrary to what is normally the case. In the absence of any independent evidence confirming you in fact providing such labour, I find this another incredible account in your evidence.

These accounts have an impact on the question of whether you are credible in the absence of any other evidence. Added to that is your performance in the witness box, which gives me reason to doubt whether you were telling the truth. Your lawyer submits that you were giving straight answers and not "beating around the bush." This submission runs contrary to what actually took place in Court. I noticed that you were quite evasive in your answers to some straightforward questions. For example, during your examination in chief, your lawyer asked to specify the house from which the victim's uncle called you over. You did not give a straight answer, thereby forcing your lawyer to ask a few more questions before you provided a name of one of her uncles. Similarly, you avoided answering directly a question as to why would the victim submit to a medical examination which obviously included her sexual organs, you said when she wanted to have sexual intercourse with Maxon, you usually stopped her.

When your evidence and your responses to questions are contrasted with that of the victim and her witnesses, I cannot trace any evasion or avoidance of the questions. Given this, I note that your lawyer was correctly not able to point out to any particular instance to support your submission that they were evasive.

Finally, I note that you did not put the entirety of your evidence in defence to the victim by way of cross-examination. As noted already, it is settled law that a party must put his case under cross-examination to the opponent's witnesses and or give notice of any particular defence such as alibi. In this case, you did not put the entirety of your case to the prosecution's main witness, the victim. This particularly relates to the claim of her having two sexual affairs with a Maxon. You put yourself in that difficulty by failing to meet the requirements of s.37H of the Evidence Act. You therefore took the stand and gave evidence of matters not put to the victim in fairness in sufficient time, so she could reconsider her position before coming to trial, with a view to retracting her allegations against you or pursue them and address your claims in the course of giving her testimony. By your own conduct; you did not give her that opportunity and failed to adhere to the rule in Browne v. Dunn (1893) 6 R 67(HL).

I find the situation is akin to a party failing to give prior notice of an alibi as discussed by the Supreme Court in John Jaminan v. The State (No.3). Accordingly, I am of the view that the consequence that applies to a failure to give notice of an alibi should also apply to a failure to meet the requirements of s.37H of the Evidence Act. This effectively means, I should place little or no weight in the evidence you called in rebuttal of the State's case.

For these reasons, I do not find your evidence credible. Accordingly, I reject your evidence. This leaves the Court with the State's evidence, which I find is credible. On that basis, I find that the State has established its case against you on the required standard of prove beyond any reasonable doubt. Thus, I return a verdict of guilty on the charge of incest against you.

Consequential on this finding, I order that you continue to remain in custody pending your sentence. A warrant of commitment in those terms shall issue forthwith.

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