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Morikawa v The State [2000] PGSC 19; SC656 (1 December 2000)

SC656

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 73 of 1996

BETWEEN:

TOMMY MORIKAWA

-Appellant-

AND:

THE STATE

-Respondent-

Waigani: Amet CJ; Kapi DCJ & Injia, J.
2000: July 26, December 1

CRIMINAL LAW – Practice Procedure – Evidence - Child - Corroboration – Need for the Court to warn itself of the dangers of convicting an accused on the uncorroborated evidence of a child.

Held: In all cases where the evidence of a child of tender years upon which the case for the prosecution depends, as a matter of law, the evidence of a child need not be corroborated in order to sustain a conviction; but as a matter practice, the Court should warn itself, that there is a risk in convicting an accused on the uncorroborated evidence of the child. Hargan v R [1919] HCA 45; (1919) 27 C.L.R. 13 adopted and applied.

Cases Cited:

Hargan v. R [1919] HCA 45; (1919) 27 C.L.R. 13

R v. Cleal (1942) 1 ALL E.R. 203

Director of Public Prosecutions v. Hester [1973] AC 296

The State v. Kewa Kai [1976] PNGLR 481;

The State v. Warepe Warara [1977] PNGLR 458;

Goli Golu v. The State [1979] PNGLR 653;

Peter Townsend v. George Oika [1981] PNGLR 12;

Ure Hane v. The State [1984] PNGLR 105

Java Johnson Beraro v. The State [1988-89] PNGLR 562

Pake Kik v. The State SC511 [1996]

Mark Nainas v. The State SC598 [1998]

Counsel:
Mr. Harricken for the Appellant
P. Mogish for the respondent

1 December, 2000

AMET, CJ: I am of the opinion that the appeal against conviction and sentence should be dismissed. I agree with the reasons given by Injia, J.

KAPI, DCJ: I am also of the opinion that the appeal against conviction and sentence should be dismissed for the reasons given by Injia, J.

INJIA, J: On 10 October 1996, National Court sitting at Wewak convicted the appellant on a charge of wilful murder and sentenced him to 25 years imprisonment. On 15 October 1996, the appellant lodged his own appeal against conviction and sentence. There are three broad grounds of appeal and these are:

At the hearing of the appeal, the appellant’s counsel, with leave of the Court, elaborated those grounds, in the following terms:

"The Grounds of Appeal -

The relevant factual circumstances of the offence are that the deceased, one Cathy Morikawa, is the wife of the appellant. They were married under local custom in 1989 and they have three children. The eldest child is Miss Bemila Morikawa. She was 6 years old at the time of the offence, on 12 December 1995. The Appellant was employed by the government as a Border Liaison Officer based at Kubaila Sub-District. They had a house at Wamalan village where they lived. There is no dispute that on the afternoon of 12 December 1995, the appellant drove home with his family after taking their last born son to Kubaila Station for medical treatment. At the house, the deceased cooked their lunch whilst the appellant sat outside on a "stool" and wrote his situation report. From here on, an argument took place between the accused and the victim which led to a fight between them. At the end of this fight, the deceased was found dead lying on the floor with her neck almost severed and other injuries to her body. It was not disputed that the accused fought with the victim and the deceased died from a severe wound to her neck which was inflicted by the accused with an axe. The dispute was over the reason for the argument which led to the fight, and the manner in which the fight took place and how and why the accused inflicted the axe wound. At the trial, the accused raised the defence of self-defence against provoked assault under s.270 of the Criminal Code. The trial judge found against the accused on this defence and convicted the accused. However, the judgment of the trial judge cannot be located despite exhaustive searches being conducted, and we are invited by both counsel to re-assess the evidence in the disputed areas and make findings of fact and inferences in accordance with the principles laid down by this Court in Pake Kik v. The State SC511 (1996) and Mark Nainas v. The State SC598 (1998). I accept this submission. This is one reason why I wish to first canvass in some detail, the State’s allegations and the evidence called by both sides.

In the National Court, the State alleged that on the afternoon of 12/12/95, after the family returned to the house from Kubaila station, the accused was in his house in the village, with his wife (the deceased), and his 3 children, the accused’s mother and the deceased’s sister. The deceased told the accused’s mother that her son did not give money to take their child to the hospital. Upon hearing this, the accused got a grass knife and swung at the deceased and cut her fingers and shoulder and she fell backwards on the floor. The accused then got a big axe and swung at the deceased’s neck three times thereby completely severing her neck. The deceased died instantly. Their 6 year old daughter, Bemila, was present and she witnessed what happened. She cried and screamed. Other people heard her and they came and took the deceased’s body away. The accused surrendered to the police.

The only eye-witness called by the State who witnessed the actual killing was Bemila. Other witnesses called by the State arrived at the scene after the killing and their evidence is not relevant to the assault except that they confirm they saw the deceased’s body lying motionless on the floor with blood all over and the neck "almost completely cut off": see evidence of Cathy August.

Bemila was examined by the Court as to her competence to give evidence and she was ruled competent. She gave evidence on affirmation. It is necessary to set out the evidence in the sequence she gave. She gave evidence In-Chief as follows. Her father killed her mother because her mother mentioned about her (Bemila) brother’s sore to the deceased’s mother. He used a grass knife and an axe. At that time, her mother was cooking banana and she was sitting close to her mother. Also present but sitting outside the house was her aunty (Catherine) and her mother’s sister (Janet) and her grandmother, and her two sisters.

First, her mother talked to her grandmother as to why her son did not give any money to take the child to the hospital. Then her father killed her mother. He used the grass knife and chopped her shoulder and her palm and fingers. That was when she was sitting down cooking. After this, he grabbed his big axe and chopped her mother 3 times on the neck. In Court, she identified an axe and a bush knife as the ones used by the accused and the State sought to tender them into evidence but the defence objected and the Court excluded them. When her body fell, he stepped on her stomach and the body did not move. He then came out and drove away in his vehicle.

In cross-examination, her answers were substantially consistent with the story she gave in evidence in chief. She denied she was told what to say by her grandmother. She denied she did not see the fight because she went outside on three occasions. She admitted accompanying the accused to the market to buy food for lunch. She denied the argument was over the accused seeing his typist. She denied seeing the deceased sit on top of the accused and squeezed his penis. She admitted she was upset with the accused because he killed her mother.

The doctor’s medical report is relevant as to the nature of the injuries sustained. He was called to explain his Post Mortem report. The Post Mortem report stated there was a "fatal wound on the right side of the neck and the hole head was hanging on the body by the left side skin of the neck. The whole spine and cord was cut right through. Small sutured lacerations was noted on her left armpit and between the left thumb and second finger." There was no palpable fractures of the major bones and noted scratch marks on the face and left side of the chest. She died from the fatal wound.

In Court in evidence in chief, the doctor said the "neck was severed with a sharp instrument right through the neck", which was consistent with the use of an axe. The lacerations, "I am not able to say, may be struggle or cut with an object, or trying to fend off an object". The doctor’s evidence under cross-examination and re-examination, is the focus of arguments by the appellant and it is convenient to set out his evidence in full:

Only the accused gave evidence for the defence. The accused gave sworn testimony. His evidence in chief was that he took his sick son and his first daughter Bemila and two boys, his wife and his mother in his vehicle and he took them to Kubaila Station where his son received medical treatment. Then he returned with them to his office. Whist they waited outside, he went into the office to talk to his typist and as he was talking with her, his wife peeped through the window and saw them. Then he drove them to the village. On the way, she questioned him about his relationship with the typist and he refused to answer her. At the house, he left the rest of them there and he and Bemila went to the market to buy some drinks and vegetables to be prepared for lunch. Upon his return home, he gave the vegetables to her to cook. The 3 children went to sleep and he sat down in the living room and wrote his quarterly situation report. After this she called him to join them for lunch. So he went and sat on a stool. After he finished eating, his wife questioned him about the typist again and he explained the situation to her, that it was normal to talk to typists. Then she pushed him over and he fell down and laid on his back. She sat on his stomach and he felt the weight on his side stomach. She pushed her hands through his trousers and held his "testicles squeezing them and pulling at the same time. She told me she would kill me. I was in a lot of pain and becoming dizzy. So I tried to fend her off from my stomach but I could not, as I was sleeping on my back and was unable to get up. I elbowed her breasts with my right elbow. She did not let go, she continued holding and squeezing my testicles. I had long finger nails and I scratched her on her left arm pit, between left thumb and second finger, thinking she would let go of me... I scratched her on her face and on left side of her chest." She let him go but was still holding onto his testicles and penis. He was in a lot of pain. "I shouted and pleaded with her to release me. I yelled out and called out Almighty’s name to help me, as she did not listen. I called out second time as no one was there to help. I used my left hand searched the floor around for an object so that I could nit her with it. I felt an handle of small axe. I grabbed the axe and swung at her to defend myself." Whilst he was lying down face up, she was sitting looking down on him. He held the axe on his left hand and swung it several times but was not sure where they all landed. He felt the axe making contact with the deceased’s body and the weight on his stomach released. He used the axe to defend himself, otherwise she could have killed him. He got up and staggered around the house. He sat on his knees and was feeling dizzy and his eyes were foggy. He did not know where he placed the axe. He then drove off in his vehicle to Wewak Police Station and surrendered himself. All this time, all their 3 children were still sleeping and they did not see the fight.

In cross examination, he said only his left hand was free to use so he used it to pick up the axe. He was also left handed. The children were locked in from the outside and they were sleeping. When he left the house, he heard "noises jumping up and down." coming from the room where the children were locked in.

Also in cross-examination, he said the fight occurred after the accused and deceased had their lunch. The children did not have lunch because they were all sleeping. He admitted telling the police in his interview, that after she pushed him over she splashed hot water on his body when he was lying on the floor and then she jumped on him. He also told police she squeezed his testicles and penis and she told him that his life was in her hands.

In relation to the grounds of appeal, the first ground of appeal is the main ground. The appellant’s contentions in respect of this ground are that the Court erred in accepting the evidence of Bemila because:- (1) she gave incredible evidence of seeing precisely what happened for how could a small child of 6 years of age witness the brutal killing from close by without fainting; (2) the manner in which she gave evidence manifested signs of being orchestrated by the deceased’s mother with whom she lived for up to 8 months after the incident; (3) she had a motive to give such incredible evidence because she was upset at her father for killing her mother; (4) her evidence was not corroborated by other direct or circumstantial evidence pursuant to the principles laid down in Java Johnson Beraro v. The State [1988 - 89] PNGLR 562 and The State v. Kewa Kai [1976] PNGLR 481; and that (5) her evidence was materially contradicted by the medical evidence of Dr. Thomas Uimit in that a single axe wound was found on her neck and not 3 axe wounds as one would expect to find if Bemila’s evidence of seeing the appellant cutting the deceased cut her three (3) times with an axe was accepted. Further it was submitted that the medical evidence is consistent with the accused’s version in that it is possible that the scratch marks and cuts on her arm pit would have been caused by the appellant trying to "fend off" the deceased in their struggle. In these circumstances, it is submitted, the accused’s version of events raised a reasonable doubt as to whether the accused deliberately inflicted the axe wound in order to cause her death, and the benefit of that doubt should have been accorded to the accused.

In relation to the second ground, it is submitted for the appellant that the appellant’s evidence that he acted in self-defence (s.270) should be accepted. The contention is that although the accused provoked the deceased to attack him, he used force which he believed was necessary and reasonable to preserve his life.

In relation to the third ground, it is submitted for the appellant that in the circumstances, he had no motive and intention to kill the deceased, that the death was caused accidentally, and that in the circumstances, an alternative verdict of either murder or manslaughter should have been returned pursuant to S.539 of the Criminal Code.

It is submitted for the respondent that the evidence of the State, principally Bemila’s evidence, was sufficiently corroborated by the medical evidence in that the fatal axe wound was confirmed to be executed in a downward motion, that the doctor did not find as a fact that the laceration and cuts on her arm were caused by the appellant "fending off" the deceased, and that from the use of a lethal weapon such as an axe and the location of the injury on vital or vulnerable parts of the body such as in the neck area, a reasonable inference of intention to kill was open: The State v. Warepe Warara [1977] PNGLR 458.

The three grounds of appeal are interrelated and I wish to deal with them together. The first and of foremost significance is the issue of whether it was safe to accept the evidence of the child Bemila, who was aged 6 years and 8 months at the time of trial. No issue arises as to her competence to give evidence on affirmation. The proper procedure to be followed when a child is examined as to his or her competency to give evidence is settled: see Java Johnson Beraro v. The State [1988 - 89] PNGLR 563. Also no issue arises as to the quality of the evidence she gave as to the sequence of events which unfolded before her eyes. She gave clear evidence in sufficient detail against her own father and performed exceptionally well under able and ruthless cross-examination by defence counsel. She maintained her evidence in examination in chief and was consistent with her evidence. She was not shaken much in cross-examination. The record of her evidence as I have summarised bears clear testimony to this fact.

As a rule of practice, at common law, in criminal cases involving assault of a sexual nature, the need for corroboration of the evidence of the victim, be she an adult person or a child, is desirable for the principal reason that complaints of sexual assault are easily made or that they are likely to be concocted or exaggerated: see The State v. Kewa Kai [1976] PNGLR 481. This rule is adopted as part of the underlying law: Peter Townsend v. George Oika [1981] PNGLR 12. But I know of no rule of practice or law in this jurisdiction which says the admissible evidence of a child of tender years in a case which does not involve an element of sexual assault, must be corroborated by some other direct or circumstantial evidence.

In other common law jurisdictions, however, statutory provisions have been enacted which require such corroboration in all or specific criminal proceedings and go on to say that there shall not be a conviction unless the child’s sworn evidence is corroborated in some material particular by some other evidence. Most Australian States have similar provisions and one such provision is s.9 of the Evidence Act 1977 of Queensland which has been quoted to us by counsel for the appellant. Similar statutory enactments exist in the UK: see Children & Young Persons Act 1933 (UK), section 30 which was considered by the House of Lords in Director of Public Prosecutions v. Hester [1973] AC 296. Nevertheless, there is a long line of common law cases which establish and restate the principle that although the sworn or unsworn evidence of a child need not be corroborated as a matter of law, the jury (or judge) should warn himself that there is a risk in convicting an accused on the uncorroborated testimony of a child of tender years. As a matter of practice, the warning should be applied and observed in all cases where a child gives evidence: R v Cleal [1942] 1 ALL E.R. 203. In that case, the Court of Criminal Appeal said at p. 205:

"In all cases of this kind, where the evidence of a child, upon which the whole case for the prosecution depends, is without corroboration, the position is defined by R. v. Baskerville [1916] 2 K.B. 658 and restated by this court in R. v. Beebe (1925), 19 Cr. App. Rep 22, is this. It is for the court (1) to tell the jury that it is within their legal province to convict upon such uncorroborated evidence, (ii) (and this is a rule to be observed and applied in all cases) to warn the jury of the danger of convicting a person on the uncorroborated testimony of the boy, and (iii) in the exercise of its discretion to advise the jury not to convict. This last is something which the court may do, but is not bound to do."

The position is similar in Australia. In Hargan v. R [1919] HCA 45; (1919) 27 C.L.R 13, the High Court, per Barton J, at p.19-20, after surveying various English cases re-stated the same principles in this way:

"It does seem to me, giving their fair meaning to all these judicial utterances, that there is more for a Judge to do in trying such a case as the present than was actually done--I mean by way of direction. There is no doubt that in general a jury, properly directed, could act upon the evidence of one person against another, but in such cases as this they ought to be told that the uncorroborated evidence of the young person solely testifying to the commission of the crime upon her person is not by itself a very safe basis on which to rest a conviction. It is the whole case of the side having the onus probandi, and while it is not essential that there should be evidence corroborating it, the jury should be warned against accepting it unless after the most careful scrutiny.... It is not enough to tell them, however truly, that corroboration is not necessary in law. In determining cases of this nature, where there is a very young person of a kind whose statements one would generally expect in the ordinary course of affairs to be made more convincing by circumstances or other persons, the jury ought to be told that, while they may act upon it as a matter of law, they should hesitate long before acting upon it in the absence of corroboration. Exception is not taken on the ground that corroboration is necessary, but on the ground of failure in such a case as this to warn or caution a jury against acting, probably to the utter ruin of a person accused, upon evidence which is uncorroborated, unless they are convinced, after close consideration, that it is in itself sufficient. For my part I think that, in order to convince, it should be very cogent indeed."

The learned text, Cross on Evidence, 2nd Australian Edition (1978), at para 9.28, page 198 puts the same principle in these terms:

"The sworn evidence of a child need not be corroborated as a matter of law. But a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated, but otherwise reliable, evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth..... It appears that the requirement of warning the jury of the danger of acting on the uncorroborated evidence of a young child is peremptory, and not a matter for discretion of the particular judge: Hargan v. R [1919] HCA 45; (1919) 27 C.L.R. 13."

In the absence of any statutory provision and case law on the point, in our jurisdiction, I see no reason why we should not adopt the common law rule re-stated in Hargan v. R (supra) as part of the underlying law for the reason that the reliability of the evidence of a child is always a matter of concern for the Court. As a matter of practice, the warning is necessary in all cases in which a judge is contemplating convicting an accused on the uncorroborated evidence of a child of tender years, to show that the judge has addressed his mind to the dangers of convicting on the evidence of the child, and that it is safe to convict on the uncorroborated evidence of the child if the evidence is "very cogent indeed" and "convincing" and the Court is satisfied that the child is telling the truth.

In the present case, I cannot tell if the trial judge so warned himself because his judgment on verdict is not available. In the circumstances, notwithstanding my lack of observation of the demeanour of Bemila when she gave evidence, I am nonetheless in a position to assess her evidence as it appears on the face of the record. In so doing, I warn myself of the dangers inherent in accepting the evidence of Bemila as forming the primary basis for conviction. After reading her evidence, I am convinced that her evidence was of good quality and credible. She manifested no signs of a child who did not see what happened and performed incredibly well only because she was orchestrated and indoctrinated by her mother’s relatives to give false evidence against her own father. I think a child’s desire to give evidence of the truth against her own father for killing her mother was the only reason why she chose to give evidence and gave good evidence of what she heard and saw. The quality of her evidence was such that it required no further corroboration but if corroboration were necessary, the medical evidence sufficiently corroborated her story of a direct downward axe wound deliberately inflicted by the accused. The accused himself does not deny the use of the axe in this manner. And things like whether all or just one of the these axe blows came into contact with the deceased’s body in the course of the struggle and whether the deceased sustained other injuries whilst the accused was trying to "fend off" her attacker are things which are incapable of precise observation by a child and no definite conclusions can be drawn in respect of them. Sufficient it is that the accused was armed with a bush knife and an axe which he used on the victim who was unarmed and these weapons were capable of inflicting the injuries described in the medical evidence.

Bemila’s evidence is also corroborated by the accused’s evidence. He admits he deliberately used the axe in self-defence. But Bemila was not asked in cross-examination about being locked away in the bedroom and sleeping in the bedroom whilst lunch was prepared and when her parents were eating lunch. She said she was in the kitchen during the incident and went outside on three occasions. It was put to her that because she went outside three times, she did not see the fight. It was not put to her that she did not see the fight because she was locked away in the bedroom with the other 2 children and sleeping. It was also most unlikely that after Bemila had gone with him to the market to buy food for lunch, she would go straight to bed with her 2 brothers without lunch and then they would be locked in from the outside. Bemila denied in cross-examination the accused’s reason for the argument, she denied the deceased sat on top of him and squeezed his penis and he used the axe in self-defence. Therefore, the accused’s story when compared with the Bemila’s story was unreliable and not credible. When the evidence of Bemila is accepted in its entirety, there is no room for the defence of self-defence and an alternative verdict on a lesser count. I conclude that the evidence of Bemila is supported by the medical evidence. Her evidence is also corroborated by the accused’s own false evidence as to why he attacked the deceased with a bushknife and axe and killed her instantly and Bemila being locked away in the room. These evidence were sufficient to find that the accused attacked the deceased with a clear intention of causing her death and not in self-defence.

The last ground of appeal is against sentence. It is submitted for the appellant that the sentence of 25 years is excessive because the killing arose in the context of a one-off domestic argument between a couple who had been married for a long time and that the accused was a first offender with a prior good character and stable work background. I refer to sentencing trends established is wilful murder cases beginning with Goli Golu v. The State [1979] PNGLR 653 and Ure Hane v. The State [1984] PNGLR 105.

Counsel for the Respondent submits that the sentence was not excessive and in fact lenient in the circumstances because a fatal axe wound inflicted on vital parts of the body such as the head, neck or chest normally attracted life imprisonment.

In my view, the maximum punishment for wilful murder is the penalty of death followed by life imprisonment. I agree with both counsel that the maximum punishment was not warranted. I also reject the Respondent’s submission that a sentence of life imprisonment was appropriate. I agree with the Respondent however that this was a very serious killing for which a lengthy goal term was appropriate. The deceased was viciously attacked over a minor point in dispute, initially with bush knife and followed by the axe three times. It appears two of axe blows did not find their mark but one of them did with fatal consequences. The fact that the neck was severed almost completely shows the severity of the blow. There was a clear intention to kill. In these circumstances, I consider that the sentence of 25 years imprisonment was within the range of sentences imposed by the Courts for this kind of killing.

For these reasons, I would dismiss the appeal against both conviction and sentence.

Court Order: The appeal against conviction and sentence of the National Court dated 10 October 1996 is dismissed.
___________________________________________________
Lawyer for the Appellant: Harriken Lawyers

Lawyer for the Respondent: Public Prosecutor