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State v Ganga [1994] PGNC 50; N1232 (7 June 1994)

N1232

PAPUA NEW GUINEA
[In the National Court of Justice]

CR. 227 (L) of 1993

THE STATE

V

SIMON GANGA

LAE: SEVUA, J.
1994: 25 & 26 May, 7 June

Criminal Law - Rape - Evidence - Cross Examination - Need to cross-examine on case which defence relies upon to be placed - Rule in Browne -v- Dunn - Principle of fairness applied.

Cases Cited:
The following cases are cited in this judgment:
Browne -v- Dunn (1894) 6 R 67
Allied Pastoral Holdings Pty Ltd -v- Commissioner of Taxation [1983]1 NSWLR 1
R -v- Hart (1932) Cr App R 202
Reid -v- Kerr (1974) 9 SASR 367
Thomas -v- Van Der Yssel [1976] 14 SASR 205
The State -v- Ogadi Minjipa [1977] PNGLR 293
The State -v- Saka Varimo [1978] PNGLR 62
The State -v- Manasseh Voeto [1978] PNGLR 119
The State -v- Isaac Awoda [1983] PNGLR 83
The State -v- Stuart Hamilton Merriam N1189
R -v- Robinson [1977] Qd R 387
Bullstrode -v- Trimble [1970] VicRp 104; [1970] VR 840
The State -v- John Kalabus [1977] PNGLR 87
R -v- Davy, R -v- Edwards [1964-65] NSWLR 40
R -v- Whitlam [1967] Qd R 49
R -v- Walczik [1965] QWN 50
Kelleher -v- The Queen [1974] ALJR 502
McCallum -v- Buibui [1975] PNGLR 439
Chiu Nang Hong -v- Public Prosecutor [1964] 1 WLR 1279
The State -v- Bike Guma [1976] PNGLR 10
The State -v- Andrew Tovue [1981] PNGLR 12
Didei- The State [1990] PNGLR 459

R. Saranduo for State
J. Appa for Accused

7 June, 1994.

SEVUA, J: On 26th May, I gave brief reasons for my decision upon convicting the accused and undertook to publish my reasons in full later. This I now do.

The accused was indicted with one count of rape and pleaded not guilty. The facts of this case which were not in dispute are these. On the evening of Tuesday 22 June, 1993 at approximately 4:45 p.m. the prosecutrix walked to the bus stop at 5 Mile near Lae to catch a PMV to 40 Mile (past Nadzab Airport), where she was employed by Moale Trading. Whilst she waited for a PMV, the accused drove to the shop at 5 Mile to refuel. The prosecutrix then walked over to him and asked for a lift to 40 Mile. The accused is known to the prosecutrix since his daughter works with her. That was the reason she had asked him for a lift. On the way to 40 Mile, before Nadzab Airport, the accused turned into Gabsongkeg Village since he had to give some money to his aunt. After this, they left the village but instead of following the road they had taken to the village, they took a shortcut towards Nadzab Airport. Along the way, at an old disused air strip, the accused stopped the vehicle, alighted and walked to the other door of the vehicle, opened it then said to the prosecutrix, "lets have it here." From this point onward the evidence of both parties deferred.

I should, on the outset, say that up to the close of the State's case, there was no indication at all as to what the accused's defence was. In fact, prior to the State calling its' third and last witness, I had intimated to defence counsel that, up to that stage, the Court and the State were not aware of what defence the accused was raising although I made it quite clear that, he was not obliged to tell the Court what his client's defence was. It was evident from the cross examination of the prosecutrix that none of the defence normally raised in rape trials were ever raised. I will canvass this aspect later.

I will now return to the point in time when the accused stopped his vehicle on the disused airstrip.

At this point in time, the accused alighted as I have said earlier. He came to where the prosecutrix sat and said, "lets have it here." It was then, the prosecutrix said she realised the accused wanted to have sexual intercourse with her so she refused. However, the accused pushed her down onto the seat. She said to him, "I know you through your daughter", but he did not listen to her. He lifted her skirt and pulled her pants down to her legs. He opened her legs apart and had sexual intercourse with her. She was screaming for help but there was no one around. After he ejaculated, he got dressed and she got dressed so they drove to 40 Mile. She was dropped off at the main gate by the accused who later drove to his village, Chifasing. The prosecutrix walked straight to her boss, Nelson Turi and complained of what the accused had done to her. Nelson Turi then instructed his security guard to contact Chifasing Police who came and took the prosecutrix to Mutzing Hospital that same night. The nurse was not available so the next morning the prosecutrix was examined by Sister Veronica Waffi who noted bruises on the cervical mouth. A cervical smear was obtained and tested at 9:07 a.m. and the result was positive, that is, the test for presence of sperm was positive.

During cross examination, the prosecutrix said she tried to alight from the vehicle but the accused blocked her way as he stood on the door. She tried to turn aside so as to avoid sexual intercourse, but the accused pushed her down. She tried to push him away to avoid penetration, but the accused, being a man thus stronger than her, succeeded in overpowering her so she couldn't do much. In other words, she became helpless and defenceless against the physical might of the accused who looks three times bigger and twice taller than the prosecutrix.

Earlier on, I adverted to the fact that during cross examination of the prosecutrix, the defence counsel had failed to put the accused's defence to the prosecutrix. Let me say at this juncture that at the beginning of the defence case, when I asked Mr Appa what the accused's defence was, he replied, his client's defence was consent. I then said if that was the case, he had not put that defence to the prosecutrix during cross examination. Asked if he was aware of the rule in Browne -v- Dunn, he said, no. I will revert to this rule later when I discuss the relevant law relating to this rule.

The evidence of Nelson Turi and Greg Baing were relevant to recent complaint so I do not intend to discuss this here, suffice it to say that, it appeared the prosecutrix had been crying for a long time from her appearance. She appeared very upset and was crying when she first complained to these two witnesses who were her immediate supervisors. Her clothes were all wrinkled up.

The accused's evidence was this. He came to Lae and on his way back to Chifasing village, he stopped at 5 Mile to refuel. The prosecutrix came and asked him and he said he had something to do at Gabsongkeg village so they both left. Along the way they told stories. After they had driven to Gabsongkeg village and he had given money to his mother, they left the village via a "short cut". He then told the prosecutrix, they would drive around or "spin around." Then the prosecutrix, "told me to go down and she lied down inside the cabin and after we did it we went to 40 Mile."

The accused went on to say that he did not use any force, the prosecutrix did not scream or struggle, she wanted K30 in return for sex and refused to accept K10 offered to her, she was his girlfriend and she had gone with him to and from Lae on previous occasions.

In cross examination, the accused admitted he was a married man with five children and that he knew he was committing adultery. As they left Gabsongkeg Village, they discussed sexual intercourse and in fact he said the prosecutrix had agreed to taking the shortcut. They had discussed and agreed to sexual intercourse before they left the village. He denied lifting her skirt and said he helped the prosecutrix pulled down her pants. He did not force her rather, she consented to sexual intercourse. In other parts of his evidence in cross examination, the accused said, he had given the prosecutrix a lot of money previously because she was his girl friend. For that reason, he felt it was fair he had sexual intercourse with her, although they had never had sexual intercourse previously. He maintained that the prosecutrix had consented to sexual intercourse.

Following his evidence, the accused's counsel indicated that the accused had two more witnesses to call however, "contrary to instructions and unknown to me, they were sitting in Court as the accused gave his evidence." He would like to call only one of them. Basically, their evidence would be that the prosecutrix had in the past travelled with the accused to and from Lae. Mr Saranduo objected to the defence calling these two witnesses and the objection was upheld. That was the end of the defence case.

Mr Appa has submitted that whilst his client does not deny sexual intercourse, his client's evidence was that he had sexual intercourse with the prosecutrix's consent. In essence, that is counsel's brief submission. When asked if he could address on his failure to put his client's defence to the prosecutrix as required by the rule in Browne -v- Dunn, he replied and said, his failure was a result of his ignorance of the rule and this was his first criminal trial. I am very concerned at the implication of counsel's remarks because to me, it amounts to professional negligence.

In respect of defence counsel's failure to put his client's defence to the prosecutrix in cross examination, let me repeat here that there is an important rule of practice known as the rule in Browne -v- Dunn (1894) 6 R 67 (HL) which has had a very good reception and application in our jurisdiction. For the benefit of Mr Appa and perhaps those young criminal lawyers who may not be aware of this rule, I will refer to it although, it has been applied here previously in both reported and unreported judgments. My reference to the rule in this judgement therefore is aimed at instructing and profiting the not so experienced counsels on this rule.

The essence of this rule, if I may be allowed to put it in a more simplified form is that, the accused's case should be put to the prosecution witnesses in cross examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain. His Honour, Hart, J in Allied Pastoral Holdings Pty Ltd -v- Commissioner of Taxation [1983] 1 NSWLR at 16 formulated the rule as follows:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are generally regarded as being established by the decision of the House of Lords in Browne -v- Dunn (1894) 6 R 67."

Due to the unavailability of the report containing Browne -v- Dunn in Lae I am unable to refer to the facts of that case however, a brief summary together with the speeches of their Lordships are contained in the Allied Pastoral Holdings, case at pp 16 & 17. At pp 70 & 71, Lord Heschell, LC said:

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible to him to explain, as perhaps he might have been able to do if such question had been put to him, the circumstances which is suggested indicate that the story he tells ought not to be believed, to argue that he is a witnesses unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."

"All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted."

Lord Halsbury said at pp76 & 77:

"My Lords, with regard to the manner in which the evidence was given in this case I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

Lord Morris in his judgement at pp.78 & 79 said he entirely concurred with their Lordships, Lord Herschell LC and Lord Halsbury whilst Lord Browne did not make any statement of general principle. The rule is stated in various ways by cases and textbook writers and I do not intend to refer to all of them.

In R -v- Hart (1932) Cr App R 202 where the English Court of Criminal Appeal, in dealing with a case involving the defence of alibi where the prosecution had failed to cross-examine the defence witnesses on the alibi, Lord Chief Justice Hewart said at 207,

"In our opinion, if on a crucial part of the case the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted."

In placing reliance on that case, His Honour Wells, J in Reid -v- Kerr (1974)9 SASR 367 at 374, quoting an earlier unidentified judgment of his, puts the rule slightly different in these terms:

"It always seemed to me that if some kind of imputation is to be made against a witness, then, at some stage - ultimately - the precise nature of that imputation should be made clear to the witness so that he is given an opportunity to meet it and, if he can, to explain it or destroy it...... I am well aware that there are more ways of taking a fort than by frontal attack, but I also hold it to be a fundamental principle that, when all arts and devices of cross-examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some fair manner, he should be given the opportunity of meeting the implication and answering it."

As to the principle of Browne -v- Dunn, His Honour said this at 375, again quoting from his unidentified judgment:

"Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which that witness took some part. As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have an opportunity of explanation. Once again, I emphasise that such a rule, as I understand it, in no way derogates from the right of cross examining counsel to use all the fair arts and devices of cross examination, but, in the final analysis, it is manifestly unfair to leave unchallenged part of a witness' evidence and then, through another witness, called by the side represented by the cross-examining counsel, to suggest something that is contrary to the first mentioned witness' testimony or which has never been covered by him ------- I have noticed from time to time ---------- that there has been a tendency to avoid the implications of Browne - v- Dunn, and, speaking for myself, I regard it as an essential characteristic of a fair trial that the principle embodied in that decision should be strictly adhered to."

The same principle was stated in the following words by Bray, CJ. in Thomas -v- Van Der Yssel [1976] 14 SASR 265 at 206:

"--------- if it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at p.70, 'it is absolutely essential to the proper conduct of a cause.' "

Their Honours, Jacobs, J and King, J, the other two members of the Full Court of the Supreme Court of Australia concurred with the judgment of Chief Justice Bray.

The list of cases in support of the rule in Browne -v- Dunn, is by no means, exhaustive. I have only referred to the ones time had permitted me to find. However, despite the various ways in which the rule has been expressed by different Courts in different jurisdictions, I think it suffices only to reiterate that, the fundamental essence of the rule is that, it is desirable for a party to put it's case to the opposing party in cross-examination so that, the opposing party can afford an opportunity to refute or explain the matters that are being put forth in cross-examination.

In the present case, both the Court and the State did not know about the accused's defence until the defence was ready to call evidence. It was after my inquiry that Mr Appa said the accused's defence was consent. At no stage during cross-examination of the prosecutrix that it was put or suggested that she consented to sexual intercourse, the subject of this indictment. It was never put or suggested to her that she lied. There were other matters which came out of the evidence of the accused that were never put or suggested to the prosecutrix. These were: she was the accused's girlfriend, they had travelled together on four or five occasions in his car to and from Lae prior to 22 June 1993, she had given him free cigarettes at Moale Trading, 40 Mile, because of this relationship, he had spent a lot of money on her, after leaving Gabsongkeg Village, they had discussed sexual intercourse and agreed to it, she told the accused to stop the vehicle and suggested they have sex, she lifted her skirt and pulled her pants down, she demanded K30.00 after refusing the accused's offer of K10.00 after sex and finally, because she did not get the cash she reported the accused. As it were, the prosecutrix never had the chance to refute or explain these matters. The accused relied on this version, but concealed it until he gave evidence. I consider it very unfair to her.

The importance of putting one's case to the opposing party's witnesses has repeatedly been emphasised in Papua New Guinea. In the first reported case, His Honour, Prentice, DCJ (as he then was) held in The State -v- Ogadi Minjipa [1977] PNGLR 293, that it is desirable that the defence counsel open in cross-examination of the State witnesses the version upon which the defence relies. At 296, His Honour said, "Before concluding, I should again mention, as other Judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that affect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit if this course be taken." With respect, I adopt those remarks in applying the rule in the instance case.

In the State -v- Saka Varimo [1978] PNGLR 62, His Honour, Prentice, CJ who was dealing with a dangerous driving causing death trial followed Browne -v- Dunn and his own decision in The State -v- Ogadi Minjipa. In The State -v- Manasseh Voeto [1978] PNGLR 119, His Honour Wilson, J in applying and following Browne -v- Dunn, The State -v- Ogadi Minjipa and The State -v- Saka Varimo, held:

"In criminal proceedings, if it is desired to impeach the credit of a witness on any particular topic or his evidence generally, he should be cross-examined about that topic or about any matter on which adverse evidence will be called, so as to give him an opportunity to make any explanation open to him, unless he has had ample notice of the matter beforehand, or unless perhaps, his story is patently incredible."

In The State -v- Isaac Awoda [1983] PNGLR 83, Kaputin, J. held,

"it is desirable in the interest of a fair trial that the defence disclose its case at the commencement of the trial: it is undesirable that matters to which credit and weight may be accorded should be kept secret and raised at the last moment."

His Honour there considered and applied The State -v- Ogadi Minjipa. The rule was further applied in the case of The State -v- Stuart Hamilton Merriam, N1189 17th March, 1993, a decision of my learned brother, Sakora, J.

However, I also quote a passage in His Honours judgment at p.7 which I wish to refer to and highlight in respect of the duty of defence counsel. His Honour said,

"accordingly it is counsel's duty in every case, (a), to challenge every part of a witness' evidence which runs contrary to his own instructions, (b) to put to the witness in terms, any allegations against him which must be made in proper conduct of the defence, and (c) to put to the witness counsel's own case, in so far as the witness is apparently able to assist with relevant matters, or would be so able, given the truth of counsel's case."

It is obvious in my view that the defence counsel is under a duty to comply with the rule, not only does this duty arise from his obligation to his client, but also his obligation to the Court. It behoves counsel and he is under strict obligation to put his instructions to the prosecution in cross-examination if the case his client relies upon is consistent with his instructions. In R -v- Robinson [1977] Qd R 387, where the conduct of case by counsel was under scrutiny, if I could use that phrase, and the Court was considering whether, discrepancy may be regarded in evaluating evidence, Dunn, J of the Queensland Court of Appeal said at 394,

"By contrast, cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation - a strict obligation - that, if he "puts" occurrences to witnesses, he puts them in accordance with his instructions. This being so, the instructions may he inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questioning based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a Judge to ask the jury to have regard to the discrepancy in evaluating the evidence."

Defence Counsel is required as a matter of practice to ensure that he complies with this rule. I consider that the defence counsel's excuse in the present case was detrimental to his client's case. His client was charged with a very serious offence carrying the life sentence as the maximum penalty, yet he made no attempt whatsoever to do any research into the law on the procedure or the manner in which he would conduct his client's defence. Whether this was his first time to run a criminal trial or not is secondary. The professional and ethical requirements in my view, demand that he be well conversed with the law and procedural aspects of a criminal trial. As a private defence counsel he was paid to defend a person charged with a serious crime and it was his obligation, his strict obligation, to ensure that he conducts his client's case competently and professionally. His lack of experience could only be seen as professional negligence and if he is a junior lawyer, the responsibility of briefing him or training him lies with his principal. I consider it quite unfair to a person charged with a serious crime, paying huge fees to a private law firm and getting services unequated with the fees. In my view, it is professional negligence of the worst kind, however, the defence counsel's conduct is not on trial before me.

Of course, the Court is entitled to infer from the defence case and defence counsel's action whether the version given by the accused in his defence were matters contained in his instructions to his lawyer. Because the accused's version has not been put to the prosecutrix during cross-examination, the Court could draw a reasonable inference that what the accused finally said in his evidence did not form his instructions to his counsel. However, that did not mean his evidence should be rejected for that reason. The Court should in my view consider the general rule of fairness apart from the issue of weight. For instance, in Bulstrode -v- Trimble [1970] VicRp 104; [1970] VR 840, His Honour, Newton, J observed at p.846, that there are two aspects to be considered. Firstly, there is a rule of practice or procedure based upon general principles of fairness to witnesses and a fair trial between the parties. And secondly, there is a rule relating to the weight or cogency of the evidence. I will revert to this aspect later when I discuss the evidence in the present case.

The failure of the defence counsel to cross examine the prosecutrix on his client's defence in the present case was quite unfair to the State because it meant the State was not able to refute the defence the accused would raise. However, in the exercise of a fair trial, leave was granted to the State to seek instructions from the prosecutrix at the close of it's case and prior to the defence leading evidence in view of the fact that, at the stage of the trial, the defence had said the accused would be raising the issue of consent. This course was considered necessary so as to give the prosecution the opportunity to put such instructions to the accused in cross examination. Whilst the defence failure as adverted to earlier, did not estopped the accused from giving evidence, in my view, the weight to be given to the accused's evidence is of paramount consideration. It would be contrary to the general principles of fairness that the accused be excluded altogether from giving evidence. The accused should give evidence if he desires and it is then a matter for the Court to have the appropriate inferences drawn and how much weight, if any, should be attached to his evidence.

I now turn to credibility. The prosecutrix spoke very good and fluent English and no doubt she seemed well educated. She spoke rather softly but convincingly. She was no stranger to the accused although she denied being his girlfriend. Having compared their appearances and their mode of dressing, I was not convinced that an educated young lady would befriend this scruffy looking accused. She gave a detail account of what had transpired and I found her a very convincing witness. She is a very close friend of the accused's daughter, Monica. She had told her what the accused had done to her. Why should she come to this Court and lie in Court to have her close friend's father convicted? I detected no untruths in her evidence. Her evidence as I said, was convincing because of its detail and has the ring of verisimilitude about it. I had no reason to disbelieve her. I therefore accept her as a witness of truth. Her evidence was credible. Her evidence as to lack of consent was formidable. I was disposed to draw from her evidence an inference unfavourable to the accused despite the evidence of the accused.

On the other hand, the accused was very unimpressive. His story was short and bald and did not convince. He was evasive sometimes and at other times, he spoke to himself that I was not able to make out what he was saying. Whilst he maintained that the prosecutrix had consented to sexual intercourse, he did not convince me as a witness of truth. In my view, he attempted to justify his criminal culpability by thinking that he had the right to demand or have sex with the prosecutrix because he claimed to have spent a lot of money on the prosecutrix. The fact is, the prosecutrix was employed at Moale Trading, 40 Mile, so she did not need the accused patronizing her with cash. He took advantage of the prosecutrix firstly, as she was alone with him, secondly, the location of the crime, that is, a disused airstrip where no one lived nearby and finally, his physical appearance and might against this helpless young woman, young enough to be his daughter. I did not accept his evidence because he was not a convincing witness.

Having made that analysis, let me say that I am cognizant of the requirement of corroboration which is not required as a matter of law but practice. Whilst this Court acknowledges that in this case, there was no independent witness to give corroborative evidence, this Court also acknowledges that most sexual offences are not committed in public so there is that secretive atmosphere pertaining to those type of offences. Given that factor, one cannot expect independent eye witnesses. In The State -v- John Kalabus & Anor [1977] PNGLR 87 at 94, references are made to a number of cases. I wish only to cite part of the quotation there pertaining to R -v- Davy; R -v- Edwards [1964-65] NSWR 40 as I consider it applicable in the case before me and that is:

"---- External evidence concerning the nature of the place and circumstances, under which sexual relations admittedly occurred, may provide corroborative evidence, of a circumstantial type, of lack of consent, although the only direct evidence thereof be of the complainant."

In my view, evidence of the nature and circumstances of the place and time amounted corroborative evidence of the circumstantial type referred to above. The time was about 6 p.m. or thereafter. The place was an isolated disused airstrip. No one resided nearby. It was on a track not accessible to the public. The prosecutrix and the accused were by themselves. All these are circumstances which in my view amounted to corroboration.

I am mindful of the danger in convicting an accused person upon the uncorroborated testimony of the prosecutrix. Thus, even if the I view I held and expressed above is considered erroneous, the crux of this whole trial is that I am satisfied of the truth of the prosecutrix's evidence even if it was not corroborated in any material particular. I have warned myself of the danger of not properly and clearly adverting to the rule of practice that the tribunal of fact should be very cautious. The warning was applied in two Queensland cases - R -v- Whitlam [1962] Qd R 49 and R -v- Walczik [1965] QWN 50. The High Court of Australia also applied it in Kelleher -v- The Queen [1974] ALJR 502. In our jurisdiction, a string of cases have discussed this rule. In McCallum -v- Buibui [1975] PNGLR 439 where the Court adopted and applied Chiu Nang Hong -v- Public Prosecutor [1964] 1 WLR 1279, it was held that the failure by a Judge or Magistrate sitting alone to advert properly and clearly to the rule of practice, in a relevant case in the absence of corroboration, will constitute an error of law sufficient to ground an appeal against conviction. In The State -v- Bike 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. In The State -v- Andrew Tovue [1981] PNGLR 8, His Honour, Kearney, DCJ said at 9 & 10:

"I think it is clear that corroboration is not required by law, but in practice persons are not usually convicted on the testimony of a complainant woman in criminal proceedings for a sexual offence, unless her testimony is corroborated by independent evidence implicating the accused. The reason is that practical experience shows that allegations of sexual misbehaviour are easy to make, and difficult to refute. Nevertheless, an accused may be convicted upon the uncorroborated evidence of the complainant, provided the Court is satisfied it is true."

The Supreme Court in Townsend -v- Oika [1981] PNGLR 12 applied this rule of practice as in McCallum -v- Buibui. Again in Didei -v- The State [1990] PNGLR 459, the Supreme Court held that failure by the trial Judge to warn himself of the danger of accepting the uncorroborated evidence of the prosecutrix in a rape trial and the failure to record that he has so warned himself constitutes a miscarriage of justice sufficient to warrant a retrial.

In the present case, I warn myself of the risk of acting upon the prosecutrix's evidence alone and the need to be very cautious in that respect. I have earlier on adverted to the credibility of her evidence and I reiterate here once again that I am satisfied beyond any doubt that the prosecutrix was truthful and accurate in her sworn testimony. I have accepted her evidence as the truth.

I am therefore satisfied beyond reasonable doubt of the guilt of the accused and I convict him of rape.

Lawyer for State: Public Prosecutor
Lawyer for Accused: Gamoga & Company