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Birch v The State [1979] PGSC 6; [1979] PNGLR 75 (28 March 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 75 - Birch v The State�

[1979] PNGLR 75

SC146

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BIRCH

V

THE STATE

Waigani

Prentice CJ Raine DCJ Kearney J

5 March 1979

28 March 1979

APPEAL - Leave to appeal - Out of time - New ground of appeal - Date set for hearing of appeal - Twelve months since conviction - Proposed ground always available - Adequate reason for leave to be shown - Leave refused.

DISCOVERY AND INTERROGATORIES - Production of documents - inherent jurisdiction of court - Document actually and visibly in Court - Document incriminating - Copy record of interview - Copy already supplied by prosecutors - Order for production properly made.

CRIMINAL LAW - Practice and procedure - Witnesses - Control of court over - Questioning by trial judge - Whether undue participation in trial - Interests of justice - Fair trial.

EVIDENCE - Witnesses - Control of court over - Questioning by trial judge - Whether undue participation in trial - Interests of justice - Fair trial.

CRIMINAL LAW - Particular offences - Rape - Consent - Fresh complaint as evidence of non consent - Apparent principles of common law inappropriate to Papua New Guinea - Constitution of the Independent State of Papua New Guinea, Sch. 2.2.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Reception of common law - Rape - Consent - Fresh complaint as evidence of non consent - Apparent principles of common law inappropriate to Papua New Guinea - Constitution of the Independent State of Papua New Guinea, Sch. 2.2.

COURTS AND JUDGES - Reasons for judgment - Extempore judgment delivered on circuit - Undesirability of adding reasons subsequently.

The appellant was charged with and convicted of the offences of rape and unlawful carnal knowledge of a girl under sixteen years. The prosecutrix was a native girl of about eleven years of age, and a shy, withdrawn and reluctant witness of whom the trial judge asked numerous questions, thereby taking a prominent part in the trial; and the accused a man of some fifty-five years in loco parentis to the prosecutrix with a view to marriage.

On the matter of consent, there was no evidence before the trial judge of recent complaint or of physical resistance by the prosecutrix, but evidence that she knew and understood the nature of sexual intercourse, and that she knew of the arrangement for marriage and was glad about it.

During the course of the trial, the trial judge required counsel for the defence to produce to the prosecution a signed copy of a record of interview, of no real significance in the proof, actually and visibly in court, the original having been lost and which document had been supplied to the accused or his solicitor in accordance with the usual and proper practice.

At the conclusion of the trial the trial judge delivered an �extempore short judgment� stating that he would deliver a full written judgment on returning from circuit to Port Moresby. This was done (see The State v. Birch [1978] P.N.G.L.R. 79).

An appeal against conviction and sentence coming on for hearing some twelve months after the conviction and some seven months after the lodging of the notice of appeal, counsel for the appellant sought leave to add a new ground of appeal:

Held

N1>(1)����� Leave to add new grounds of appeal should not be granted on the day set for the hearing of the appeal, where such grounds should properly have been included in the notice of appeal, and where any further adjournment of proceedings would unduly delay the hearing of the appeal, without adequate reason therefore being shown.

N1>(2)����� The court, in the absence of notice to produce, or consent, had power to require production to the prosecution of a signed copy of the record of interview which the defence had actually and visibly in court.

The State v. Birch, [1978] P.N.G.L.R. 79, affirmed:

N1>(3)����� In criminal proceedings the trial judge has power to intervene (but not unduly) by asking questions and calling or recalling witnesses if he considers in his discretion that that course is necessary to the ascertainment of truth or in the interests of justice.

Yuill v. Yuill, [1945] 1 All E.R. 183, applied.

N1>(4)����� In the circumstances of Papua New Guinea including the difficulties of obtaining evidence from very young Papua New Guineans, the assistance of somewhat inexperienced prosecutors and inexpert evidence gatherers, and the absence of juries, it may be necessary for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature than would be called for or proper in other more sophisticated settings.

N1>(5)����� In the circumstances, the trial judge could not be said to have intervened to such an extent that a miscarriage of justice had occurred.

N1>(6)����� (Per Prentice C.J. with whom Raine Dep. C.J. agreed.) Any principle of common law which asserts that lack of fresh complaint is evidence of consent to rape is inappropriate or unsuited to the circumstances of Papua New Guinea.

N1>(7)����� (Per Prentice C.J. with whom Raine C.J. agreed, Kearney J. dissenting.) In the circumstances, it could not be said beyond reasonable doubt that consent on the part of the prosecutrix had been excluded by the evidence and accordingly the verdict of guilty of rape should be set aside as unsafe and unsatisfactory under s. 22(1)(a) of the Supreme Court Act 1975.

N1>(8)����� [lxvii]1 (Per Prentice C.J.) Only in the most abnormal situations should any reasons for judgment be sought to be added later to those given on circuit in a judgment actually delivered.

Appeal

This was an appeal against convictions for rape and unlawful carnal knowledge of a girl under sixteen years of age on the grounds:

N2>(a)����� that the learned trial judge misdirected himself as to consent � that lack of consent was not shown;

N2>(b)����� that the judge misdirected himself as to corroboration of consent;

N2>(c)����� that the judge misdirected himself as to corroboration re penetration;

N2>(d)����� that there was undue participation by the judge in the trial of such a nature and extent that justice did not appear to be done.

At the hearing of the appeal counsel for the appellant sought to add a new ground of appeal namely, that the National Court having convicted and sentenced for the crime of rape, should not have proceeded to convict of and sentence for the second charge also.

Counsel

B. Hoath and G. D. Payne, for the appellant.

N. M. Maraleu, for the State.

Cur. adv. vult.

28 March 1979

PRENTICE CJ: This is an appeal against two convictions � for rape and for unlawful carnal knowledge of a girl under sixteen, at Kavieng on 13th April, 1978. Both convictions arose from the one set of facts about one incident of alleged sexual intercourse. The indictment contained two counts � a course rendered necessary by the apparent draftman�s error in the compilation of s. 553 of the Criminal Code 1974 when the words �with the crime of rape ...� were omitted from the body of the section, though the section remained headed �charge of rape and like offences�. It would seem that no objection could be sustained to the indictment (s. 543 Criminal Code).

LEAVE TO ADD A GROUND

When the appeal was called on, leave was sought to add a further ground, viz. that the National Court having convicted and sentenced for the crime of rape, should not have proceeded to convict of and sentence for the second charge also. As the course taken by the trial judge was quite unusual (I know of no previous instance of it), it must have been obvious on the face of the record at the time, if cavil were taken at it even before reasons were given for judgment early in 1978. It is nearly one year since conviction.

The tendency for counsel to seek to add further grounds of appeal on the day of hearing or shortly before (a factor presumably aggravated by the introduction at a late stage of overseas counsel who seek perhaps to improve what may appear to them as a weak brief), has now become alarmingly frequent, and threatens the efficiency of the work of this court. Such a course was taken in each of the four appeals brought on this month.

That possibly important points of principle in the criminal law can be raised and argued in such a fashion is unsatisfactory in the extreme, when the court organisation, the commitment to circuit duties of the judges by whom the Supreme Court is constituted, and the infrequency with which short sessions of the court can be mounted, are considered. Practitioners who seek to make such applications where a matter is called on for hearing, can confidently expect that if leave be granted, the hearing of the matter will normally be deferred to a later sitting.

I would refuse leave to add the ground sought in the circumstances obtaining here.

ORIGINAL GROUNDS TO APPEAL

Without the abovementioned ground, four other points were argued, viz.:

N2>(a)����� that the learned trial judge misdirected himself as to consent � that lack of consent was not shown;

N2>(b)����� that the judge misdirected himself as to corroboration of consent;

N2>(c)����� that the judge misdirected himself as to corroboration re penetration;

N2>(d)����� that there was undue participation by the judge in the trial of such a nature and extent that justice did not appear to be done.

I propose to deal with the fourth question first, as a matter of convenience.

UNDUE PARTICIPATION

Owing to the young age of the prosecutrix and her apparent reluctance to give her evidence, the judge took a very prominent part indeed in the examination of the girl. It was asserted without contradiction, that he asked 186 questions to the prosecutor�s 123. No exception was taken to this at the trial; and it is the more difficult therefore for exception to be taken now � just as a failure to object to a summing-up is a considerable impediment to grant of leave for a new trial (compare La Fontaine v. The Queen[lxviii]²). Nor is it suggested that counsel were distracted from their duties or harassed, or that bias was shown. But a collation of points of judicial behaviour is relied upon to establish that justice did not appear to have been done.

Inter alia, it was alleged that the judge had appeared to direct the prosecutor to proceed with the rape charge instead of proceeding alone on the carnal knowledge allegation. However, on my reading of the notes and his Honour�s reports, it is clear to me that his Honour merely corrected the false impression that counsel apparently had, that he was required in the circumstances to elect as to which charge of two he would proceed with (see s. 543 Criminal Code).

Then again, it was made a subject of complaint that a signed record of interview (of no real significance in the proof) then in the possession of the accused�s counsel � the only copy available � be produced. But this was clearly what his Honour was by law required in the circumstances to do.

Again, three witnesses called by the prosecution were recalled by the court, and each was asked a couple more questions. This too, it seems to me, is well within the province and duty of the court where a doubt be held as to the meaning or extent of evidence.

The question of undue participation by a judge in the conduct of a trial was discussed by the Court of Criminal Appeal of N.S.W. in R. v. Butler [lxix]³. Therein, the Chief Justice adopted the remarks on the same subject (and with which I too, with respect, agree) of Lord Greene M.R. in Yuill v. Yuill[lxx]⁴�as follows[lxxi]⁵:

�Now, his Honour undoubtedly did participate to an inordinate and unwise extent in the conduct of the trial. The matter is not to be determined by consideration of arithmetical statistics alone, but it was pointed out that his Honour, so far as Rochester was concerned, actually put more than one-third of the total number of questions that were asked of this witness, and he did interest himself to a considerable degree in eliciting various matters. In the course of the examination he put a great number of questions which were really cross-examiner�s questions, but again all directed to eliciting evidence from Rochester as to the part that he had played ... I think that I cannot do better, so far as general principles are concerned, than cite at some little length passages from the judgment of Lord Greene M.R., in Yuill v. Yuill[lxxii]⁶. His Lordship said:

�The other argument was to the effect that the trial was unsatisfactory owing to the fact that the judge took an undue part in the examination of the witnesses. It was said that the judge put many more questions to witnesses than all the counsel in the case put together and that he in effect took the case out of counsel�s hands to the embarrassment of counsel and the prejudice of his case. The part which a judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. But with the utmost respect to the judge it was, I think, unfortunate that he took so large a part as he did ... It is quite plain to me that the judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which are apt to flow from an undue participation by the judge in the examination of witnesses. It is, of course, always proper for a judge � and it is his duty � to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the judge does not know what is in counsel�s brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination. In cross-examination, for instance, experienced counsel will see just as clearly as the judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross-examination may be destroyed if the judge, in his desire to get to what seems to him to be the crucial point, himself intervenes and prematurely puts the question himself. I think it desirable to throw out these suggestions in case they may be found helpful in the future.�

Again, but dealing rather with the question how far the judge�s opinion of the demeanour of a witness ought to be taken into account by the Court, his Lordship said:

�A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge�s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue[lxxiii]⁷.�

Speaking for myself, I should like to emphasise my own agreement with those passages from his Lordship�s reasons.�

Each of the judges of the National Court becomes aware of the difficulty from time to time of getting very young Papua New Guinean girls to come out with their version of complaints�particularly those of a sexual nature. Each of the judges may be faced from time to time with having the assistance of somewhat inexperienced prosecutors and inexpert evidence-gatherers. In the circumstances of the country it may become necessary in my opinion, for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature than would be called for or proper in other more sophisticated settings. Another vital difference between the Papua New Guinea experience and that of other jurisdictions is that here there is at present no jury which can be misled in a variety of ways by judicial intervention.

My mind has wavered a little on this point, principally on the number of questions asked. But I feel that his Honour the trial judge was in a better position in this case to assess in his discretion, what procedurally was called for than I am now on reading the obviously abbreviated notes of evidence. I do not find myself in the result, convinced that a miscarriage of justice in the sense envisaged by this ground of appeal, has been shown.

WAS LACK OF CONSENT SHOWN TO THE NECESSARY DEGREE?

I turn now to the evidence relied upon to support the conviction for rape. The element of lack of consent must of course be established beyond reasonable doubt. The relevant evidence seems principally to be contained in a few short statements of the girl:

N2>(a)����� �It was on the bed that Jack Birch did wrong to me� (in itself of little significance perhaps, because sexual intercourse by a young person outside marriage could be regarded as �wrong� morally and by custom);

N2>(b)����� �I did not want it. I felt pain�;

N2>(c)����� (on recall as a witness) �I did not at the time or before it happened do or say anything that might have made him think I was agreeable�.

The National Court was also entitled to look at the circumstances that the intercourse was had with the girl lying face down on the bed�that �Birch did not speak to her��did not ask if he could do this thing�that she �did not know he was going to do this thing�. Accused�s counsel does not appear to have put to the girl the question of consent�doubtless because his client was not admitting intercourse. His Honour also looked to what he regarded as probabilities that she had no desire for intercourse, that the accused was in a position of dominance, and that she was a child.

I do not think the question of submission as contrasted with consent arises, because the factors provided for by s. 357 as possibly excluding the reality of consent, viz. force, threats or intimidation of any kind, fear of bodily harm, or false and fraudulent representation as to the nature of the act, impersonation; appear to be a closed category��submission� possibly arising from parental agreement as to bridal arrangements would not appear to be contemplated�unless it incorporated threats or intimidation.

Defence counsel relies on the lack of fresh complaint by the child as being evidence of consent. I do not regard this submission as valid. For, if it be the law of the United Kingdom as at Independence Day, properly understood, that lack of fresh complaint is evidence of consent (contrast the law in Australia set out in Kilby v. the Queen[lxxiv]⁸); such is my experience of trials for rape and sexual offences in Papua New Guinea, that I have no hesitation in asserting and holding that such a principle of the common law (if it be such) is totally unsuited to the conditions of and present organisation of Papua New Guinea society. In this country questions of shame and irrational parental reaction by way of instinctive punishment of the complaining child who has been unwillingly �spoilt� (to adopt the Pidgin phrase) might well, and in my experience of court trials, commonly do, render children reluctant to make an immediate complaint. In addition on this topic, with respect, I regard his Honour�s comment as forceful.

On the other hand, it does appear that this child had been introduced into Jack Birch�s house at his request to her father (an old business associate of his), that she become in due course of growth, his wife. As at least a companionable bedfellow she slept, apparently naked, on his bed with him, at least for some three weeks (it is elsewhere suggested for �years�). She knew of sexual activity between girls and boys and men and women. According to her father, the prosecutrix knew of the arrangement for marriage since she first went to stay with the accused and was glad about the arrangement.

In that setting, one which is difficult for a person not of the particular village society, to appreciate; I find myself, with due respect to his Honour�s advantage over this court in having seen and heard the prosecutrix give her evidence, unable to come to the conclusion beyond reasonable doubt, that consent on the child�s part to the sexual act had been excluded by the evidence. Accordingly I am of the opinion that the verdict of rape is under the circumstances of the case, unsafe and unsatisfactory, and ought to be set aside (s. 22(1)(a) Supreme Court Act 1975).

There was however no contest as to the prosecutrix�s being under the age of sixteen. I found in this connexion, the submission that the amount of blood found on the clothing and household furnishings following the incident could have resulted from digital stimulation � quite unreal. Dr. Mako�s evidence of a moderate amount of dried blood on the girl�s vulva and perineum with a laceration about one and a half centimetres in length extending from the posterior wall just at orifice down the perineum which was still oozing blood, I regard also as corroboration of the girl�s account that she had been penetrated by the appellant�s penis. I am of the opinion therefore that the conviction for unlawful carnal knowledge of a girl under sixteen, should be confirmed and also the sentence thereon.

Before leaving the subject of the appeal. I would wish to offer with respect, some comment on the course followed by the learned trial judge in this case. His Honour�s notes of evidence are headed �Friday 13th April� as are his reasons for judgment. But it would appear that the trial spread over 10th, 11th, 12th and 13th April. At the conclusion, after many submissions of law during the trial, an �extempore short judgment� was given (which is not set out), and it was stated that after return to Port Moresby a full written judgment would be issued. This practice was apparently common in the years before 1969 when an appeal became available in criminal matters to the then newly instituted Full Court of the Supreme Court. Since that time, I can recall no case in which that procedure has been followed. Obviously it is undesirable as possibly exposing the trial judge to criticism. I consider that the National Court on circuit must do the best it can on the spot to come to a conclusion and conclude a case. If it finds itself unable properly to give reasons; then in my opinion, judgment should normally be delayed until it can. I realise that at times travel commitments and distances involved could make this difficult. One can only do one�s best with the assistance of counsel�s submissions, and take comfort from the ready access of parties to the Supreme Court if one errs.

In this instance, his Honour ultimately delivered a closely reasoned judgment, of some thirty-one pages in the appeal book, with an addendum of two pages, and a report under r. 33(d) of the Supreme Court Rules of another two pages. The only one of these documents that is dated is the judgment itself which is headed �13th April��though that is of course not accurate.

The undesirability of the practice of giving reasons subsequently, is brought out when one considers that a correlation between judgment and grounds of appeal may be sought to be made out, leaving room for an imputation that an argumentative defensive judgment has been prepared. A court of course has no property in its decisions, and a court must avoid any suggestion arising that it is itself trying to defend its actions. (Compare, on a slightly different aspect R. v. Williams [lxxv]⁹.)

For this reason I would seek to recommend that only in the most abnormal situations should any reasons be sought to be added later to those given on circuit in the judgment actually delivered.

RAINE DCJ:� I agree with the judgment of the Chief Justice and with the orders he proposes. However I wish to add a few observations of my own.

UNDUE PARTICIPATION

Like the Chief Justice, my mind has wavered somewhat. The large number of questions asked by the learned trial judge and the very considerable time spent on them, and the answers, troubled me.

But, for the reasons given by the Chief Justice I do feel that in this country there is bound to be rather more judicial intervention than might be thought appropriate elsewhere. Kept within proper limits, I believe circumstances here make this inevitable.

However, it must be kept in the forefront of our minds, to adapt the words of Denning L.J., as he then was, in Jones v. National Coal Board[lxxvi]¹⁰, that we must avoid the danger of dropping the mantle of a judge and assuming the robe of an advocate. To do that, or seem to do it, does not become a judge.

I believe that some distinction can be made between the case of a judge sitting with a jury and a judge sitting alone, as we do. There is great danger, in the case of a judge sitting with a jury, of the jury, or some of it, taking the view that the judge had made up his mind one way or the other, if the judge participates over keenly. However, this is not to say that a single judge is in a vastly different situation. The very well known case of Jones v. National Coal Board[lxxvii]¹¹�concerned an appeal from a High Court judge sitting alone who intervened excessively. Yuill v. Yuill[lxxviii]¹²�referred to by the Chief Justice, was also an appeal from an English High Court judge sitting alone in Divorce. And there are others I have found, where the judge criticised on appeal, sat alone.

Thus, whilst the dangers inherent in overmuch participation are generally the greater when the judge sits with a jury, this is not to say that they fade to insignificance when the judge sits alone. The judge sitting alone can unconsciously adopt an attitude, and be seen to do so, just as his interventions where he has a jury can have the result of steering a jury�s mind one way or another.

Of course, and I said something along these lines in argument, there might well be cases, particularly where the issues are highly technical ones, where a judge might ask an enormous number of questions, in order to understand the evidence. Even there the trial judge must be super-careful, for it might be, that in seeking instruction from the experts that he only proceeds along one line or track, albeit with the best intentions in the world.

With great respect to the trial judge, I do feel he took running of the trial rather too much into his own hands by his persistent questions. Standing alone, I would not disturb the verdicts on that account.

However, the submissions went further. Complaint was made about his Honour�s part at the time the appellant was arraigned. I agree with the Chief Justice�s observations. I see no vice at all in what his Honour did. I regard this as a makeweight submission.

Then complaint was made because his Honour required the production of a copy of the record of interview which the defence had in its file or brief. The State�s original had been lost. No privilege attached to the defence�s copy. It had not been subpoenaed, but this matters not, it was called for, and should have been produced, for it was in court.

Be all this as it may, it was not a document that assisted the prosecution. It was not inculpatory, either in the sense that it contained admissions, or contained a ridiculously false story of the relevant events, so false as to damn the accused.

The other matter was the recall of three witnesses by the judge. His Honour had every right to do this. In over eight and a half years here I have often done it. It is permissible. Of course, one has to take care, and it is not something done lightly.

LACK OF CONSENT

I admit that this has troubled me. However, I agree with what has been said by the Chief Justice.

It was a trial where the accused gave no evidence, nor called any. Thus we are not as disadvantaged as many appeal courts are in merely reading a transcript, although, of course, I subscribe to the principle that appeal courts should take pause before upsetting findings of fact made by the primary judge, with his undoubted advantages in assessing the worth of witnesses whom he has seen and heard.

I concur in the result proposed by my brother the Chief Justice. I am far from satisfied that lack of consent was proved.

LEAVE TO AMEND

I entirely agree with what the Chief Justice has said. Applications for leave to amend grounds of appeal are becoming far too common. Here the points sought to be taken should have been apparent to counsel who drew the original grounds of appeal. I agree that leave to amend should be refused.

CONCLUSION

I agree with the orders proposed by the Chief Justice.

KEARNEY J: I would refuse leave to add an additional ground of appeal. It is the duty of counsel when settling an appeal to see to it at the time, or reasonably promptly, that all grounds on which it is intended to rely are sufficiently set out. Here no adequate reason has been advanced for inaction in the period of seven months between the lodging of the appeal and its hearing.

The first ground of appeal related to the conviction for rape.

It was submitted that the evidence was insufficient to warrant the finding of non-consent, that the only evidence which went to that issue was the testimony of the prosecutrix that �I did not want it�. His Honour had held that the prosecutrix:

�... had given evidence from which absence of consent might reasonably be inferred beyond any doubt, namely her evidence that �she did not want it�, that it had never happened before, that she was not facing him, that �he did not ask me if he could do this thing to me�, that �I did not know he was going to do this thing to me�, and that �I did not at the time or before it happened say anything from which he might have thought that I was agreeable to intercourse�.�

Apart from the testimony of the prosecutrix, his Honour appeared to place weight on:

�... collectively, her youth (no more than twelve), her virginity before intercourse and her injuries received during intercourse, all attested to by Dr. Mako, her physical immaturity as attested to by the same witness and confirmed by her appearance in court and in the witness box, her general immaturity as evident in the witness box, and the age of the accused. vis-�-vis that of the prosecutrix.�

I consider that these were matters which his Honour properly took into account in arriving at his conclusion on the question of non-consent.

It was submitted that non-consent has to be manifested by words or deeds; that in this case there was no evidence of physical resistance by a prosecutrix who knew about and understood the nature of sexual intercourse; and realised that sexual intercourse with the prisoner was wrong; and accordingly a finding of non-consent was not open. This submission had been made to his Honour who rightly, in my opinion, rejected it. It is not the law that physical resistance must be proved, to establish non-consent in the circumstances postulated, and I think that the decision in R. v. Howard[lxxix]¹³�is somewhat misleading in that respect. I respectfully agree with his Honour that as a matter of common sense the absence of resistance frequently means the presence of consent. But the question of consent remains a question of fact in the circumstance of the particular case.

The third submission was that there had been misdirection on the significance of the prosecutrix�s failure to make fresh complaint. It was contended that such failure was evidence of consent. His Honour had found it unnecessary to decide that, as, in view of all the circumstances of the case, which he then set out, he regarded such failure as of no significant weight. His Honour was quite entitled to take that view; it was not misdirection. In any event, as I understand the law, failure to make fresh complaint is not evidence of consent, but evidence relevant to the credibility of the prosecutrix; I respectfully agree with Barwick C.J. in Kilby v. The Queen [lxxx]¹⁴.

The question of non-consent on a charge of rape is a question of fact, particularly difficult because it involves a determination of the woman�s subjective attitude towards the sexual act at the time. The credibility of the witnesses is very important. In this case the trial judge had ample opportunity to assess the witnesses, and he concluded that the prosecutrix was truthful, was not prepared to lie, or capable of lying, in the witness box, and that what she said there was all true. It was on the basis of this assessment, coupled with the corroboration that his Honour found, that the prisoner was convicted. There was no question of conflicting evidence, or of mistake as to the existence of consent. Where an issue turns on the credibility of a witness who testified before him, the views of the trial judge must be accorded great weight. The appellant has not shown that his Honour failed to take properly into account the evidence as a whole, I do not think the finding of non-consent was unsafe or unsatisfactory, in these circumstances.

The second and third grounds of appeal were that none of the matters relied upon by his Honour as corroborative, respectively, of non-consent and penetration, could amount to corroboration. I do not think there is any substance in these grounds.

The fourth ground was that the learned trial judge had participated unduly in the conduct of the trial. Reliance was placed on a number of matters which occurred in the course of the trial, as establishing, in the aggregate, that justice was not seen to be done, on the basis that to a disinterested observer, the judge would be identified with the prosecutor. This raises serious questions about the role of the judge in the trial process in this country; however, it is a matter of degree in each case, no objection was raised at the appropriate times during the trial, and as I concur in my brothers� view that no miscarriage of justice resulted, it is unnecessary to pursue the matter further.

In my opinion the appeal should be dismissed.

Leave to add fresh ground refused. Order that appeal be allowed against conviction and sentence for rape.

Order that conviction and sentence for carnal knowledge of girl under sixteen be confirmed.

Solicitors for the appellant: Warner Shand, Wilson & Associates.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.