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Townsend v Oika [1980] PGNC 35; N231(L) (8 July 1980)

N231(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 171 OF 1980

BETWEEN

PETER TOWNSEND
APPELLANT

AND

GEORGE OIKA
RESPONDENT

Waigani: Kearney DCJ
7-8 July 1980

KEARNEY DCJ: On 19th June 1980 the appellant was convicted before the District Court at Goroka on a charge of common assault. He was sentenced to six (6) weeks imprisonment with hard labour. He now appeals against both conviction and sentence.

Before the District Court the Police case was as follows. The appellant is the Provincial Works Manager based at Goroka. One Saturday morning, the 24th of May, he went to his office. Between 12 noon and 12.20 pm he entered an office where the victim Lucy Kumel was working. She is an accountant machinist; she was alone in the office at the time.

After some conversation between them about work matters, the following incident occurred, in the words of the victim Lucy:

"He kept on staring at me, then he came close to me on my right, and started tapping my hair. I did not have bad feelings. Then he held my two hands and pulled them and holding my shoulders and I said ‘What are you trying to do?’

He then pulled me out of the chair to the open space, and he started to touch my breasts, and my private part, and I told him to leave me, but he kept on doing it, and I told him I would tell Peter Harold; then he left me and he went out to his car and left.

I went to see my boss, he was not there. I then told Thomas about the incident and we told Peter and then we reported the matter to the Police."

Lucy Kumel testified before the District Court. She said she had been at work that day since 9.30 am; she had been employed there for about a month. She believed the time was 12.20 pm, when the appellant came in, because she asked him the time, before the assault commenced. She demonstrated to the Court what had happened to her. She said the appellant "kept holding me tight on to him", while she was calling out. She thought he held her thus for about 5 to 8 minutes, in the course of which, she said, he "tried to put me on the floor with his hands". After the appellant left, she said "I cried, as I felt bad." She was at the Police Station by about 1 pm. The Police had opened that in the course of the assault, her pants had been pulled down to her knees, but the witness made no mention of that.

The other Police witnesses were two of her fellow workers, Messrs. Thomas Auis and Avi Boroa. They had also been working at the office premises that morning but had gone to lunch at 12 noon. At the time they left, they spoke briefly with the victim. Later, at their house not far away, the victim came crying to them.

The appellant also testified. He said he arrived at the office that morning, at about 11.30 am. He worked in his own office for a while, then took some files to the room where the victim was working alone; he said he had a brief conversation with her, and then left. He said that Lucy had asked him the time, and it was exactly 12.10 pm, and he stayed only 3-4 minutes in the room with her. He denied any assault upon Lucy Kumel. He arrived home, some 5 minutes walk from the office, in time to hear the news at 12.30 pm. In this account, he was supported by his wife, who said he was home by 12.21 pm.

The magistrate found that the alleged assault had in fact taken place. It is clear that he believed Lucy Kumel’s account and disbelieved the appellant. They were both testifying before him and he was of course in a position to assess their truthfulness and accuracy of recall. This Court is not.

The law provides that an appeal such as this is to be allowed only if there appears to have been a substantial miscarriage of justice.

Before me the appellant relied on two matters.

The first was that although the charge was of common assault under s. 353 of the Criminal Code, the magistrate had found it was an aggravated assault. Counsel submitted that the evidence was insufficient to warrant such a finding; the evidence was however amply sufficient for that purpose, once the magistrate had decided that Lucy Kumel was telling the truth.

Counsel also submitted that the finding that the assault was aggravated in nature was not open to the District Court, because the charge had been ultimately laid under section 353 of the Criminal Code (common assault) and not under section 354 (aggravated assault). I would reject that submission. It is of no moment, to my mind, that the magistrate considered "the nature of the assault was an aggravated one",; that finding was open upon the evidence before him. I do not think that s. 354 does any more than increase the sentencing power of the magistrate, in certain circumstances; s. 354 does not create a separate offence of "aggravated assault". The Information as laid specified that the victim of the assault was a woman, a circumstance which envisages the application of section 354. In the event, the magistrate did not rely upon the extended sentencing power under section 354.

The second matter relied on by the appellant related to the time during which the alleged incident was said to have occurred. The appellant contended that the evidence was, that at the time when according to the Police the appellant was in the office assaulting Lucy Kumel he was in fact already home. In my opinion there is no substance in that submission. It cannot be expected that times would be other than approximate; the precise period during which the assault occurred has no bearing on the matter, except in so far as it goes to credibility. As I have mentioned, it is clear that the magistrate believed Lucy Kumel, and it was open to him to do so.

I raised with counsel the question of corroboration. It is a clear rule of practice that judges and magistrates should warn themselves that it is not safe to convict of a sexual offence when there is no corroboration of the victim’s account by independent evidence implicating the defendant. This is because such charges can be easily fabricated, for hysterical or vindictive or other motives; and can be difficult to refute.

Here of course it was not alleged that the assault amounted to a sexual offence; the circumstance of aggravation as alleged in the Information, was merely that the person assaulted was a woman. But the evidence of Lucy Kumel showed that it was in fact an assault of a sexual nature. In such a case I consider that the same rule of prudence should apply; that is, a magistrate should warn himself that it is dangerous to convict unless there is evidence, other than the evidence of the girl, which implicates the defendant in the commission of the assault, in a material particular; and he should mention it in his reasons for decision. Having so warned himself, a magistrate may lawfully proceed to convict on the uncorroborated evidence of the girl alone, if satisfied after careful scrutiny that she is telling the truth; though in general such evidence would not be a very safe basis on which alone to found a conviction.

In this case, it does not appear that the magistrate bore in mind the danger of convicting on the uncorroborated testimony of Lucy Kumel. Nevertheless, on the particular facts of the case, I do not think that the conviction should for that reason be quashed, because I do not consider that his failure to do so occasioned any substantial miscarriage of justice. The magistrate had the victim and the appellant before him, and was clearly convinced that the uncorroborated testimony of Lucy Kumel was true. That being so, it was both open to him, and proper, to convict.

As to the severity of the sentence, I note that the maximum sentence under section 353 of the Code is 6 months imprisonment with hard labour. The magistrate took into account when sentencing him to 6 weeks imprisonment, that the appellant was a first offender, and a "good man". The sentence as imposed in the circumstances clearly lay within the magistrate’s discretionary sentencing power.

In the result, I consider that the appeal should be dismissed; and the conviction and sentence affirmed.

Order accordingly.

Solicitor for the appellant: M. Taylor
Counsel: M. Taylor
Solicitor for the respondent: L. Gavara-Nanu A/Public Prosecutor
Counsel: J. Karczewski