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State v Toapala [1993] PGNC 10; N1191 (2 December 1993)

Unreported National Court Decisions

N1191

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 351 OF 1993
THE STATE
v
PAUL PAKITS TOAPALA>

Buka

Jalina J
30 November 1993
1-2 December 1993

CRIMINAL LAW - Evidence - Incest - Offences of sexual nature - Corroboration - Recent Complaint - Complaint prompted by a relative four years later - Not sufficient recent complaint in the circumstances.

CRIMINAL LAW - Evidence - Incest - offences of sexual nature - Corroboration - Repetition by victim to more than one relative of accused's conduct towards her - Need for independent testimony of victim’s conduct - Repetition by victim to more than one person of accused's conduct not independent testimony - Victim cannot corroborate herself.

Cases Cited:

The following cases are cited in the judgment:

The State v Andrew ToVue [1981] PNGLR 8

Peter Townsend v George Oika [1981] PNGLR 13

R v Finch and Karo Nain [1959] No 146

R v Whitehead [1929] IKB 99

TRIAL

This was a trial for one count of attempted incest and one count of unlawful and indecent dealing with a girl under the age of 16 years.

Counsel:

NT Sios for the State

E Massatt for the Accused

2 December 1993

JALINA J: This ed stands trial on onon one count of attempting to have carnal knowledge of one Bicilla Pakits who was his daughter as he well knew between 1st January 1989 and 30th June 1993 on dates unknownuka. He also stands tnds trial on a second and alternative court of unlawfully and indecently dealing with his daughter who was under 16 years of age during the same period.

The State alleges that on dates unknown between 1st January 1989 and 30th June 1993 the accused continuously tried to have sexual intercourse with the victim who was the eldest daughter from his third wife. The State also alleges that the accused between 1st January 1989 and 30th June 1993 unlawfully and indecently dealt with his daughter in that he continuously touched and fondled his daughter's breasts and vaginal area. She was under 16 years of age at the time.

The accused has denied both charges. In fachis Record of Intervnterview he denied having any knowledgehe matters alleged against him by the victim.

The victim has given sworn evidence ince in which she basically confirmed what tate has alleged. She She said the affair bair between her father and herself started in 1989 when she was in Grade 2 at Lemankoa Community School. Taking jud notice of the fthe fact that school age for Community Schools in Papua New Guinea is 8 years, she was 9 years old in Grade 2 when the accused started to commit the alleged offence against her. She said that except for 1992 and 1993 when the accused only fondled her breasts and her vagina, from 1989 to 1991 the accused would tell her to remove her cs and remove his clothes and tell her to sit on his penis and when he could not penetrate hate her he would rub his penis outside her vaginal area. This happenside their hous house. Sometime accused would do d do this during the day and sometimes at night. She said that her father did these things to her during the day when she returned from school and her mother was away a night when her mother was was outside the house. The matter did noe to ligh light until about the middle of June this year when she told her cousin brother Dennis Sawala when she became upset after her father, the accused, beat her up. From the victim&;s eve it e it appears that that there was no penetration of her vagina by the accused’s penis.

When questioned by the Ctowards the end of her evidence in chief she said that from 1989 up to June 1993 she did noid not tell anyone because her father threatened her not to tell anyone. On cross-examination she agreed that she was closer to her mother than her father and that there were female relatives living near them but she did not tell them and on re-examination she said that the reason for this wat she was ashamed.

>

The witness Dennis Sawala is a cousin brother to the victim. He that in March this year year when he went to the accused’s house he saw the accused hold the victim’s breast but he did not tell anyone about it be he was not upset by it. In aboth June this year year year the victim told him about the sexual relationship between her and her father (the accused) and he told her that he would not do anything but he would keep a look-out as he wanted to see for himself.

On cross-examination, Dennis Sawala said that when he saw the accused fondling the victim’s breast it was at a distance of about 6-8 metres from him. He did not call out to thu accused and the victim when he saw this nor did he tell anyone. On re-examination he said that the reason he did not call out was that he did not feel bad about it because he used to se accused touch the victim&ctim’s breast and swear at his children.

On or about 21st June Dennis Sawala told Rose Hamalu about the victim's relationship with her father and requested Rose Hamalu to interview the victim about it. Rosemary is a cous the vice victim by reason of their respective mothers being real sisters. Rose Hamalu is also sin toin to Dennis Sawala.& Rose Hamalu asked the victim to tell her what her father used to do to her and as the vict victim was telling her she wrote down on ce of paper what the victim said. The contents of whaf what she told Rose Hamalu has been tendered in evidence without objection. From the notes taken by Rose it appears that when the victim was in Grade 2 in 1989 the accused used to make her sleep s private parts.

Whep>When the victim was in Grade 3 the accused actually had sexual intercourse with her when her mother was in the bush.

One night when the victim was in Grade 4 the accused slept on top of her when her mother was outside and she told the accused that she would run out of breath.

Starting from the time the victim was in Grade 5 to the time she was in grade 6 the accused used to fondle her breasts and her private parts. Sometimes he would hol prir private parts when he finds her sleeping with her private parts exposed.

When her father has sexual intercourse with her he used to threaten her wisault if she told her mother. Ho used to threatereaten hten her with death at the hands of her brothers.

Rose Hamalu also said that after the victim told her of the above, she took the victim to the Lemankoa hospital for medical examination. This one but the nurse tole told her and also stated in the report that because of the length of time the incident took place it was cult to determine if sexual intercourse took place or not. Roselu gave the nursenursenurse's report to the policewoman at Hutjena Police Station.

The victim was later taken to the Sohano Health Centre by Senior Constable Carolyn Pio for further medexamination. This wass was doner Sevou evou on 12th July 1993. From his report it appears that the victim denied vaginal penetration each time she sat on the accused penis between her thighs around the vaginal entrance. Are was no evidence of ingf ing on the vagina no penile penetration had taken place.&#1e. But Dru also found upon exon examination of the victim’s vathat it was fully developed and that the hymen was not pres present.

The victim has told Rose Hamalu that on some occasions thused had actually had sexuasexual intercourse with her, thus indicating that there had in fact been penetration. Both to Dr Sevd to this Cois Court she said that the accused did not actually penetrate her. She said during -examinatiination by Mr Mashat she had not had any boyfriend from 1989 until now. Yet Dr Sevou that the hyhe hyhe hymen was not present. If her fatid not pene her her vagina and she had not had any boyfrieyfriend to date, how was the hymen broken?

Both offences are offenc a senature. The; The rule of practi coat common law is that in criminal proceedings for afor a sexual offence, although corroboration may not be required by law, an accused should not be convicted on the testimony of a complainant woman, unless her testimony is corroborated by independent evidence implicating the accused. This appears in the headnote in The State v Andrew ToVue [1981] PNGLR 8. This rule of practic held held by the Supreme Court as appropriate to the circumstances of Papua New Guinea in Townsend v George Oika [1981] PNGLR 13. It was said said in R v Finch and Karo Nain [1959] No 146 that “charges of a sexual nature are notoriously easy to make and difficult to refute. The a salutary rule of praf practice that it is dangerous to ct on uncorroborated testimostimony in such cases. ‘Uncorroboraestimonyimony is defined in s. 1 of the Criminal Code Act&# in relation to an accused used person” to mean “testimony that is not corroborated in some material particular by other nce implicating him”.221;.

Mr Sios for the State has submitted that I should convict the accused on the first count and failing that I should convict him on the alternative count. He submitted that there was sufficient evidence of the accused attempting to have carnal knowledge of his daughter both from the victim’s evidence and the evidence of Rose Hamalu who he first opportunity of interviewing the victim after she hehe heard from her cousin Dennis Sawala. He further submitted that I should believe the victim whose evidence is corroborated by her own evidence and the doctor’s evidence that the hymen was ng. The victim had failed to tell anyone because the accused had threatened her and tand that she had become ashamed. Mr Sios er submitted that that the accused’s failure to testify has left the victim's evidence unchallenged.

Mr Massat for ccused has submitted that since there is lack of recent complaint which is essential to suso sustain a conviction in a sexual offence which the charges before me are, I should acquit the accused on both charges. He effectivubmitted that what with the medical report of Dr Sevou being unclear due to this conflicting opinions on penetration and the complaint being made by the victim nnis Sawala and Rose Hamalu a long time after the incident dent first took place, I should acquit the accused on both counts.

I have considered the submission in light of the evidence and find that the victim’s evidence has not been corroborated by independent evidence implicating the accused. There is nont complaint.&#nt. The recital victim in a se a sexual offence of what an accused man may have done to the victim and such recital having been made at the instigation of a relative as hapened is no corroboratboration by independent evidence. To0; To compin 1993 of sexf sexual acts which took place as far back as 1989 is obviously not a recent complaint. It is just too far fletch d in time to be a fresh or recent complaint. In this what the sses Rose Rose Hase Hamalu and Dennis Sawala have told the court were basically what the victim told each one of them.&#160R v Wead [1929] IKB 99KB 99 where the accused was charged with having unlawful carnal knowledge edge of a girl under the age of sixteen years, it was suggested that the girl’s evidence might have been corroborated by the fact that she told her mother about it afterwards, Lord Hewart said at p102:

“In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A girl cannot corroe herseherself, otherwise it is only necessary for her to repeat her story 25 times in order to get 25 corroborations of it.”

I do not accept the victim’s evidence that she ot tell anyone because she she was scared and also ashamed. Sh not alone with the accu accused. Her mother was there and there were also female relatives including Rose Hamalu. What the ac was doing to heto her was very serious. He was to hs real dau ater ater and this has been going on since 1989. I cannot acceat beca becaubecause she was scared and ashamed she al this serious crime tome to be continuously committed on her by the accused.

There is evis evidence from her through Rose Hamalu the accused had actually pene penetrated her vagina. She denied to Dr Sevou andu and as well as in this court. Yet Dr Sevou fount the hyme hymen was not present. If the accused did not penetrate her and she had not had any boyfriend to date thenbrokehymen?

It p>It is also surprising and unbelievable that the accused only told her toer to sit on his penis and did not penetrar vagina from 1989 to 1991 1991 when she did not have any breasts and yet in 1992 and 1993 when she had breasts, he only fondled her breasts and private parts but did not attempt to have sexual intercourse with her. Human n would have demandemanded him to have been more interested in actual penetration when she had breasts and her vagina was well developed than he would have done 1989 to 1991.

I also cannot accept Mr Sios’ su7; submission that because the victim’s evidence remains unchallenged by the accused’s failure to testify that the accused should be convicted. As couns no doubt aware, tre, the onus is not on the accused to prove his innocence but it is on the prosecution to prove his guilt beyond reasonable doubt. Secti (4) f the Constitutiitution provides for the accused to beto be presumed innocent until proven guilty according to law. Accordo lawy view means acns according to laws, regulations, rules and legally accepted practicestices. A ly accepted rule of pre pre is the requirement for corroboration and recent complaint. At the of the Stat State&tate’s case the State has not discd the required evidentiary standard which is the requiremenrement for corroborative evidence implicating the accused to be from an indent source and not at the the instigation of a relative such as Rose Hamalu of what she had earlier told Dennis Sawala. She c corroborate herself self by repeating the same story to another person.

On the whole of the evidence I am not satisfied d reasonable doubt of the guilt of the accused and as such I find him not guilty on both coth counts. I order that his bail mon y be refunded to him.

Lawyer for the State: Public Prosr

Lawyerawyer for the Accused: Public Solicitor