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Queen v Chan [1964] PGSC 32 (12 February 1964)

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

THE QUEEN

-v-

PETER CHAN

Coram: Ollerenshaw, J.

12^th February, 1964.

Trial at Rabaul:
3^rd, 4^th, 5^th, 6^th, 10^th, 11^th, and 12^th
February, 1964

JUDGMENT

The accused, Peter Chan, is charged under Section 349 of the Code that on the 23rd day of December, 1963, in the Territory of New Guinea, he attempted to commit rape upon Gwenda Joyce Cuthbert, and alternatively, under Section 350, that he unlawfully and indecently assaulted her.

The crime of rape is defined in Section 347, where it is provided so far as is material in this trial, that:

"Any person who has carnal knowledge of a woman ........ without her consent, or, with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind ,....,,.., is guilty of a crime, which is called rape."

That is the crime or offence it is charged that the accused attempted to commit.

Section 4 of the Code covers and provides the legal requirements for criminal responsibility in the case of an attempt to commit a crime, in these words:

"When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence."

This Section 4 also provides insofar as is relevant, that:

"the complete fulfilment of his intention is prevented by circumstances independent of his will, or, whether he desists of has own motion from the further prosecution of his intention."

In this trial I must be satisfied beyond all reasonable doubt that:-

1. (a) The accused person had the intention of having carnal knowledge of the complainant without her consent, or,

(b) That he had the intention of having carnal knowledge of her after obtaining her consent by force, or by means of threats or intimidation, and

2. That he did more than try to seduce her, more than merely prepare to carry out his intention; that, having such an intention as I have mentioned, he did actually begin to put his intention into execution by means adapted to its fulfilment, that is to say that he began to put his intentions into execution by doing things that were suited to its fulfilment, and that he did actually manifest, that is to say show or display his intention by some overt or observable act.

It is alleged by the Crown that the offence took place in the top bunk of the small cabin of the small Motor Vessel "Ellan" during the night of the 23rd, or in the early hours of the 24th December last, while that vessel was on a journey from Rabaul to Tanga Island.

The accused person, a Chinese resident of Rabaul (not of full blood) of twenty-three years of age, was the Wireless Operator and Engineer employed on the vessel and its de facto Captain. It had a Native Mastor for navigational requirements.

The prosecutrix, Gwenda Joyce Curthbert, is a young European woman, aged twenty-one years, who was on a visit to Rabaul from Brisbane, where she graduated Gee, of Rabaul, had also graduated as a Nursing Sister at the Brisbane General Hospital at the same time as Miss Cuthbert, and, it would seem that their association led to Miss Cuthbert coming to Rabaul, where she stayed with Mr. and Mrs. Michael Woo at their home in Sulphur Creek Road.

Miss Cuthbert and Miss Gee had accepted an invitation to go on the vessel to Tanga Island, where Miss Gee's sister and her husband, Mr. Chan, lived. This Mr. Chan is a brother of the accused.

They were accompanied by a young man, Mr. Henry Marshall, an employee of the Administration at Rabaul and a friend of Miss Gee.

The vessel left Rabaul for Tanga on the night of the 23rd December last with these four people on board and a native crew. As I have said it is alleged by the Crown that the offence took place on that journey.

The defence, Mr. James for the accused person opened, was a straight out denial of the allegations made by the prosecution and he concluded his final address by submitting that the Crown had failed to prove beyond all reasonable doubt that the accused was guilty of the charges.

The Crown called as witnesses of events, Miss Cuthbert, Miss Gee, Mr. Marshall and three members of the native crew. I have not found any assistance in the evidence, itself, of these native witnesses.

The accused gave evidence in his own defence and denied, expressly and impliedly, all that Miss Cuthbert said in evidence that he had done or said to her in her bunk that was of significance in relation the charges. He did admit that he had sat on the edge of her bunk with his body in contact with hers and his legs hanging down outside the bunk, and, that in an effort to comfort her in her sea-sickness, he had stroked her leg. He also admitted that while doing this on one occasion, he did ask her three times to have intercourse with him and he said that she did not reply to these requests.

It is not disputed that the accused visited the cabin on three occasions during the night while Miss Cuthbert was sea-sick in her bunk and that he did render her assistance. Nor is it disputed that Mr. Marshall also visited the cabin while the accused was there on the first two occasions.

However, for what happened on the third occasion upon which the accused visited Miss Cuthbert, that is the occasion when it is alleged that the events occurred upon which the Crown must rely as constituting the attempt to commit rape, the Crown relies solely upon the evidence; of Miss Cuthbert.

Mr. Marshall was spending the night outside on the roof of the cabin, where, too, was Miss Gee.

It follows that the Crown case in this trial of grave importance depends upon the truthfulness or otherwise of Miss Cuthbert.

I will say at once that having seen and heard her in chief and in cross-examination and having very carefully considered her evidence in the light of all the evidence that has required my consideration in this trial, I accept her without hesitation as a witness of truth.

There are many factors, apart from her demeanour in the witness box, that go towards that acceptance and I mention here only her ready frankness in admitting what might have appeared unfavourable to her when, for instance, she agreed that earlier in the night she was sitting on the bunk with her dress above her knees and that, in the course of the struggle between the accused and herself in her bunk, the struggle upon which the Crown relies, she did promise the accused that she would grant him his desire when they were on Tanga. Having mentioned this promise I should say that I am entirely satisfied that it was extracted by force and threats and given in a desperate attempt to save herself in a desperate situation and without the slightest intention of keeping it. I have no doubt that the accused, himself realised this and continued with his attempt to rape her while she was suffering from the effects of sea-sickness and without help.

There has not been the slightest suggestion of any extraneous animosity on the part of Miss Cuthbert towards the accused, nor why she should indulge in the wickedness that would be hers of making these grave charges against him if they were not true, charges that a woman of lesser courage might have preferred to hide and so avoid the publicity and ordeal of a public trial.

I do not refer to all the evidence as to the advances made by the accused during his earlier visits. In the course of these visits and while Miss Cuthbert was afflicted with sea-sickness, he did inform her of his intention to be a play-boy and get what he wanted where he could and, significantly, that if he did not get it by being polite he could get rough. Incidentally, he assured her that sexual intercourse was the only cure for sea-sickness, an original contribution, as far as I am aware, to the art of seduction.

He did slap her face when she screamed and threaten that if Henry did come down, the crew, who knew their orders, would throw him overboard.

On the last occasion he got into her bunk and knelt beside her and did and said the things relied upon as constituting the attempt to commit rape. I am quite sure that he abandoned what he would call the "polite" method and did get "rough" in the manner described by Miss Cuthbert. I will not refer to all that he said and did in the struggle that occurred in the bunk, a struggle in which her resistance saved herself, and saved the accused from the graver charge of rape, itself.

He did threaten her that if she didn't behave herself he would send all the native crew in when he was finished with her. He did squeeze her breasts and so hurt her. Miiss Cuthbert did see him try or start to undo the zipper of his fly. Probably he succeeded, unless her actions prevented him. He did rip off her pants. He did insert his fingers into her vagina and hurt her in doing so.

I consider that Miss Cuthbert's subsequent conduct, including her complaint, expressed to Mr. Marshall and Miss Gee as soon as she could escape from the cabin and go to them on the roof, her choosing not to return to Rabaul on the vessel and preferring to make the roundabout journey by Mission boat to the coast of New Ireland, motor vehicle to Kavieng and aeroplane to Rabaul, her making her first official charge at Rabaul and her conduct there, are entirely consistent with her credibility. Likewise, it is consistent with her account, as it is inconsistent with his, that he made no enquiry as to why she did not return to Rabaul on his vessel.

I should mention the apparent conflict between Mr. Marshall and Miss Gee, on the one hand, and Miss Cuthbert, on the other, as to what actual words she used when she gained the refuge of the roof. They say that she told them that the accused had raped her, and I think, they believe that is what they heard. She says that what she said was that the accused had tried to rape her and, I think that that is what she intended to say and believes that she did say. She was, however, in great distress, crying, says Mr. Marshall, sobbing, says Miss Gee, and there are a number of probable explanations. For instance, she may have inadvertently said that he had raped her, or, in the circumstances, they may have misheard her. Whatever was said was linked with reference to her sea-sickness and there was room for mistake.

I heed the warnings as to uncorroborated evidence in trials of this sort, but, I have such a sense of conviction from Miss Cuthbert's evidence that I do not feel the need to look for corroboration. However, this may be found in this trial; for instance, in the conflicts upon significant matters between Miss Gee and the accused, in which I accept the evidence of Miss Gee, and in the conflicts between Mr. Marshall and the accused, in which I accept the evidence of Mr. Marshall. Earlier in the night, when Miss Gee and Mr. Marshall and the accused were at the bow of the vessel, Miss Gee says that the accused spoke to her in Cantonese (a language which it is not suggested that Mr. Marshall understands) saying that he would like to make love to Gwen and Miss Gee told him not to be silly. The accused denied that such a conversation had taken place. There was also the conflict between them as to the drinks which the accused gave the women. The conflict between Mr. Marshall and the accused was as to the quantity of alcohol the accused drank on the vessel before the relevant events and as to his condition. Mr. Marshall said that the accused drank two or three small bottles of beer and three or four very large whiskys with water and that definitely he was under the influence of liquor. The accused said he had two small whiskys with water and no beer and that he was sober.

I hold that what the accused said and did in Miss Cuthbert's bunk would amount in law to an actual attempt to commit the crime of rape and would include overt acts on his part manifesting an attempt to commit rape and, too, that the means adopted by the accused would be suited to the fulfilment of an intention to commit rape.

I am satisfied beyond all reasonable doubt that the accused person intended to have carnal knowledge of Miss Cuthbert, without her consent, if he could not obtain such consent by force or by means of threats and intimidation, and, that, with the purpose of fulfilling his intention, he did and said all the things she accuses him of.

Upon the first count I find a verdict of: Guilty.

Mr. Pratt, for the Crown, has said that the second count is alternative and that he does not ask for a verdict on that count in the event which has happened.