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Queen v Glennow [1962] PGSC 25 (2 April 1962)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

COR: OLLERENSHAW J.

THE QUEEN v. EDWARD THOMAS GLENNOW.

Trial at Rabaul:
28^th, 29^th, 30^th March
and 2^nd April, 1962.

JUDGMENT.

The accused is charged under section 211 of the Code that on the 7^th February, 1962, in the Territory of New Guinea, he procured one Otto-Vala, a male person, to commit an act of gross indecency with him.

The accused is a European, who appears to me to be over the age of forty years. Otto-Vala is a native, whose age appears to me to be between twelve and fourteen years.

The indecency is alleged to have occurred between two people in the bedroom of the accused in single men's quarters at Rabaul. There was one other occupant of these quarters, another male European, who was in the building at the time in the evening when the offence is alleged to have taken place. He was referred to in the evidence, was available at the Court on the last day of the hearing but was not called by the Crown or the accused.

Evidence for the Crown was given by two police officers of the Rabaul Police Station and by three native witnesses.

The accused made an unsworn statement and did not call evidence.

The Crown alleged that between 7 and 9 o'clock in the evening the accused, who has to some extent under the influence of liquor at the time, grabbed Otto by the hand, when Otto was in or near the kitchen of the quarters, took or led him to his bedroom, closed the door and switched off the light; that by, or at the instigation of the accused the clothes of these two people were removed and that, at the desire and request of the accused, gross acts of indecency took place between them on the bed of the accused.

The native witnesses were John-Toniiba, who was employed by the employer of the accused and worked at the same place of employment at Rabaul as the accused did; Otto-Vala, an unemployed native youth from the nearby village of Kodup, and, Asol-Kawas, the accused's native domestic servant.

John gave evidence to the effect that in the evening of the 7^th February, 1962, after he had had his dinner, he went to the residence of the accused in response to an invitation, extended to him earlier in the day by the accused, who, so he said, stated at the time of the invitation that he had some liquor at his house. He took with him Otto, who belongs to a neighboring village called Bai, and who was living with him at the time. They went into or near the kitchen and it appears from his evidence that he spent some time at the accused's house, near and in its kitchen.

He saw the accused, who was drunk, grab Otto by the hand and take him into his bedroom and then he saw the light in this bedroom go off. He saw the accused leave the house some time later and soon thereafter Otto also left the house. He claimed that when he saw that the accused was drunk he warned Otto to keep away from him and that he himself hid from the accused behind a tank.

Otto said that he went to the house at the request of, and with John, that there they drank tea, served to them by the accused's cook-boy, Asol, in the kitchen, and that, after the accused had had his dinner, prepared and served by Asol, the accused, who appeared to be drunk, came to the kitchen, grabbed him by the hand, pulled him inside his room, closed the door and switched off the light. Then, Otto said in this Court, the accused removed Otto's lap lap and his own trousers and put on a towel and that, at the request of the accused, he held and rubbed the penis of the accused, who held Otto's penis. He said that these acts of indecency took place as they sat on the edge of the bed with their feet on the floor.

He described how they were interrupted by the intrusion of Asol, who came into the room and went to a cupboard, there to get some cigarettes. He said that soon afterwards he left the room and, at the request of the accused, cleaned the accused's shoes and wiped up water that had overflown from the bathroom when the accused showered after he, too, had left the bed. The accused dressed and left the house to go to the pictures.

Asol gave evidence that he had known the accused for four years and washed, ironed and cooked for him and that on this night the accused came home at half past seven, when he served the accused's dinner. He could see that the accused had been drinking. The native boys, whose names he did not know, arrived shortly after the accused. He identified the witnesses John and Otto and said that the accused grabbed Otto by the hand and took him from the kitchen into his room, where the light then went out. He, Asol, went outside and, through the window of the accused's bedroom, he claimed that he saw the accused and Otto lying on the accused's bed and indecently holding each other. He returned inside the house and went into the bedroom under the protest of getting cigarettes. When he opened the door to enter the room the accused and Otto were still lying on the bed indecently occupied with each other; then the boy got off the bed and pretended to wipe the floor. This was not the drying of the floor to which Otto referred as having been performed by him later and after the accused had had a shower. He left the room and subsequently the accused showered, dressed and went to the pictures. He then got a police boy or took Otto to him, saw Inspector Young and Sub-Inspector Harris and was present when they had a conversation with the accused that night.

I will refer to the evidence of these police officers later in this judgment.

The defence was a denial of the whole of the Crown case as to what happened at the accused's residence this night, that is to say a denial that the incidents related in the evidence as above took place at all. In his statement from the dock, at the end thereof, the accused said: "I think my cook-boy, Asol, has a grudge against me and has arranged this whole charge."

It was not disputed, to my understanding, that the acts of indecency as described in the evidence of Otto were acts of gross indecency within section 211.

In any event, in my judgment, they clearly were and I consider, too, that the evidence produced by the Crown sufficiently founds a charge against the accused of procuring another male person to commit an act of indecency with him and that, upon that evidence, he was appropriately charged under this section. I did not understand these matters to be disputed, the defence resting upon the onus upon the Crown to prove, to the requisite degree, that the acts alleged did in fact take place.

In cross-examination by Mr. Jones, Counsel for the accused, Asol was the main object of attack, it being put to him that he was angry with the accused because the accused, who had advanced him £5 to repay to a native from whom he had stolen £5 and who was threatening to go to the Police, set-off this advance against his wages, which meant that Asol did not receive his last monthly pay.

Asol admitted that he was angry with the accused, that in the committal proceedings he had said that this was over the dispute about his pay, and that, in such proceedings, he had admitted that he had "made this allegation" because of his hostility to the accused. There was no suggestion, as far as was disclosed in cross-examination in the trial, that Asol had admitted that his evidence about the happenings at the accused's house was untrue. In the trial before me he claimed, in cross-examination, that he was not angry because of the money but because the accused used to get a lot of boys up to his house. It was put to him that he did not see the boy go into the accused's room at all and he maintained ".... I saw him with my own eyes, he went into the master's room."

It was also put to him that he had not been able to see through the window what was happening in the bedroom and that he had not mentioned this view in the Magistrate's Court. With this latter omission he agreed but it did not appear that he had been questioned there in a way that would have lead this evidence. He was also cross-examined as to some divergencies between his evidence in the committal proceedings and his evidence in this trial, particularly as to the way the parties were lying on the bed.

It was not suggested to Asol that he had prevailed upon, or conspired with John and Otto to concoct their evidence nor was such a suggestion expressly made to either of them. It was put to John that his story of going to the accused's house this night was entirely untrue, and then, that even if he did go Otto did not accompany him. It was put to Otto that he did not go inside the house on the night and that what he had told the Court about holding the accused's penis and the accused holding his penis was untrue. This witness maintained that the accused did pull him into the accused's room and that each of them put his hand on the penis of the other. These two witnesses were further cross-examined to show inconsistencies between the accounts of the native witnesses and divergencies from their evidence given before the committing Magistrate.

There were of course some inconsistencies in the native evidence and divergencies between their testimony in the Magistrate's Court and this Court. For instance, Otto said below that the accused asked him to take his, Otto's lap lap off and he, Otto, did so. In this Court he said that the accused took his lap lap off.

It would be unusual if some such inconsistencies and divergencies as were disclosed were not present. I do not mean to say that they should be overlooked but that a tribunal of fact must look at the whole case, all the evidence, the circumstances and probabilities and incidentally weigh the importance of inconsistencies and divergencies.

Perhaps the least unimportant – I use this word in relation to the circumstances of this case – divergency was that of Asol, who said in the Magistrate's Court, that he was angry with the accused over the money dispute and that he made the allegation because of this hostility to the accused, whereas in cross-examination in this Court he said he was not angry over the matter of his wages but because the accused "used to get a lot of boys up to his house."

I may say here that although invited by Mr. McKillop for the Crown to take this piece of evidence into consideration upon the question of guilt I prefer to put it out of my mind and consideration. It was no part of the Crown case and was, in a sense, thrust upon cross-examination Counsel.

This is a convenient place to refer to the part played by the witness John. Mr. McKillop invites me to infer that he played a more sinister and blameworthy role than he admits, the role of a procurer in a sense other than the sense in which a person would be a procurer within section 211 and that, in giving his evidence, he moved by the natural desire of a person to make light of his own part in, and contribution to an episode such as is alleged by the Crown.

It may well be that to infer that John procured Otto and took him to the accused's home at the request of the accused and that the reference to liquor was an invention, or that liquor was to be his reward, would be more than an informed guess. In the Magistrate's Court, so it appears from the evidence in this Court, Otto said that John did not warn him against the accused and did not hide from the accused. In this Court he did agree with Otto in these respects. This charge may well be explicable. However, in all the circumstances, here, too, I prefer to put the suggested possibility or probability out of my mind and consideration.

Returning to the evidence of Asol, I do not think that he saw the details of what he said he saw through the window and I do think that his failure to see what was happening through the window was the reason why he entered the room. I think that I have to look at his evidence with special care and, before accepting it, find support for it in the evidence of the other witnesses or the circumstances in which he found himself on the night.

Inspector Young gave evidence of his approach to the accused after the pictures that night and after having a conversation with Sub-Inspector Harris and a conversation with Asol and Otto. He had a conversation with the accused as to which he and Sub-Inspector Harris, who was present, gave evidence. Asol and Otto were also present.

In the course of this conversation Inspector Young said to the accused: "This native has told me that this evening he went to your place, that you took him into the bedroom and sat on the bed with him and held his penis, what have you got to say about that?" Inspector Young also told the accused that Asol alleged that he went into the accused's bedroom and saw exactly what Otto was alleging.

The accused, at first, defiantly maintained that he did not know and had never seen Otto before and, in explanation of why Asol should make such an allegation against him, gave a description of their relations as master and servant as, permitted by the accused, which suggests that this relationship was, indeed, somewhat remarkable. When asked, however, he could not suggest any reason why Otto should make his allegation.

Inspector Young then informed the accused that he had observed that the accused had been drinking heavily for several days and asked him would that have any effect on him. The accused, shedding his assertive demeanour, replied: "Yes that's really the trouble. I try to fight it. What with the drink and the tablets I take I get as awful pain here and break down." After some other questions Inspector Young asked the accused what he meant by "break down", to which the accused answered: "I lose control of myself and do silly things like this. Anyway I only held the boy. I did not hurt him" and a little later he said finally: "Look nobody was hurt why not forget about it?"

There was some difference in the words of the accounts of the police officers in their recollection of this conversation between Inspector Young and the accused but not such as to call for comment by me. They were of the type not unusual in all human testimony. A point was made that Inspector Young in answer to the question in cross-examination: "Did the accused appear to be under the influence of liquor?", replied: "No," whereas Sub-Inspector Harris, in answer to the question whether he noticed if the accused "was to any extent under the influence of liquor", replied: "He was affected by alcohol but he was not drunk." I think that the phrase "under the influence of liquor" has a meaning to many people of something more than "affected by liquor" and closer to being "drunk." Having regard to Inspector Young's general adherence in this trial to the answers: "Yes" and "No", I am not surprised that he answered: "No" to the question put to him, which was not the same as the question put to Sub-Inspector Harris. Inspector Young was not re-examined upon his answer.

In addition Mr. Jones pressed that they had not recorded the conversation until next morning, that Sub-Inspector Harris admitted to glancing through Inspector Young's typed version before he typed his own and that Sub-Inspector Harris, who before the Magistrate had said that the words used by Inspector Young in referring to the accused's drinking were: "Would that have anything to do with it" and in this Court said that they were: "Would that have any effect upon you", after merely admitting in cross-examination below that the latter version "could" be correct.

I saw and heard these police officers and I have no hesitation in accepting their evidence. Inspector Young was not even dented in cross-examination. I do think, however, that it is unwise, to say the least of it, for one police officer to read the account of another police officer before making his own record. I do not think that this was done by Sub-Inspector Harris with any wrong intent but to ensure that he did not overlook anything that he had heard late in the night of the previous day, a day during which both officers had been on duty from eight o'clock in the morning, with a break after four o'clock before they were recalled for other work, which occupied them until 12.45 a.m. I would, however, express the hope that Sub-Inspector Harris does not make a practice of what he did on this occasion. Some more years of experience in the force and as a witness may convince him of the wisdom of this.

In his statement in this Court the accused revived his denial of ever having seen Otto and that he committed acts of indecency with him. He also stated that he had denied to Inspector Young "something about holding the boy." The accused proceeded to state: "When he told me what was supposed to have happened I made some remark about nobody was hurt let's forget all about it. However, I did not mean by this that I had anything to do with this boy. I think my cook-boy, Asol, has a grudge against me and has arranged this whole charge."

The Crown argues that this statement not only admits, in effect, what the police officers say that the accused finally said in answer to the allegations conveyed to him by Inspector Young and indicates a change of attitude as deposed to by them, but also, from its actual contents and from the absence of denials, inferentially admits part of the conversations deposed to by them sufficient to amount to an admission that he held the boy. It may not go quite so far. In any event I do not rely upon it, but, I cannot attach weight to it in favour of the accused as against all the evidence in what appears to me to be a strong Crown case.

I accept the evidence of the police officers and, in my judgment, the accused's answers and statements to Inspector Young amount to a confession of what Otto, who is supported by the other witnesses as to some of his evidence, namely the taking of him to the bedroom, closing the door and switching off the light and the accused remaining there with him for some time, alleges took place in the bedroom.

In all the circumstances I accept the evidence of the Crown witnesses, John, Otto and Asol, subject to some minor reservations as to detail and, in the case of Asol, subject to the reservations I have already mentioned. I entertain no doubt that he did go into the bedroom and interrupt the parties in a guilty episode. It may well be that even when he was in the bedroom he did not see the details, to which he deposes. I have no doubt that he saw the parties on the bed together. The room was darkened and upon his entry the parties probably changed attitudes, as interrupted guilty persons do. Otto says he got up from the bed and the accused covered his penis with his hands. There was some change and this witness is probably confused about what he did actually see in the darkened room, or wished to claim that he saw more clearly than he did or, as is not unusual in many witnesses, believes that he did.

I do not think that Asol invented his whole story because he was angry with the accused over the withholding of his wages. I do think that he gave the accused away to the Police because of this grudge.

I find beyond all reasonable doubt that the accused did take Otto by the hand to his bedroom, close the door and switch off the light; that their clothes were removed, in the case of the accused by himself, and, in the case of Otto by the accused or by Otto at his request; that all this was brought about by the accused for the purpose of sexual gratification with Otto and that on the accused's bed in his room that evening acts of gross indecency took place between them at the request of the accused.

I consider that there is ample corroboration of the evidence of the accomplice Otto in the circumstances proved by the other witnesses. I refer particularly to the accused's taking Otto to his bedroom, the closing of the door and switching off the light and their remaining there without any suggestion that the accused had some innocent purpose with Otto, a stranger to his household. I regard the conversations with Inspector Young and the answers and statements of the accused in the course of that conversation as providing very strong corroboration of the evidence of Otto as to their being together in the accused's bedroom and as to the acts of indecency which he says took place between them on the accused's bed.

I have not overlooked the warnings that experience shows and authorities require should be heeded when considering the evidence of an accomplice, particularly the case of offences such as this, offences that it is so easy to allege have taken place in private and are so difficult to disprove.

However, upon a consideration of the whole case I have no doubt about my findings. Indeed, I think it was a strong Crown case, a case in which the evidence for the Crown consisted of the testimony of a native, who was associated with the accused as his work but had no connection with his home, a native, who was associated with him in his home but had no connection with his work and a native, who was a stranger to both his work and his home. There was also the evidence of the police officers as to conversations with the accused on the same night. I think that Counsel for the accused has done the best he could in the face of a case of such strength.

I find a verdict of guilty and convict the accused of the offence as charged.