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Tomai v State [2019] PGSC 103; SC1865 (27 June 2019)

SC1865

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA N0. 17 0F 2017

RAPHAEL TOMAI
Appellant

-V-

THE STATE
Respondent

Kokopo: Kariko J, Frank J & Lindsay J
2019: 25^h & 27^th June

APPEAL - criminal law – appeal against conviction – aggravated sexual penetration – admissibility of clinic book – whether “public document” – whether finding of corroboration proper – whether alternative verdict available

Cases cited:

John Beng v The State [1977] PNGLR 115

Legislation:

Criminal Code, Ch.262
Evidence Act, Ch.48
Supreme Court Act, Ch.37

Counsel:

Mr F Kirriwom & Mr I Dalu, for the Appellant
Mr P Tusais, for the Respondent

JUDGEMENT

27^th June, 2019

1. BY THE COURT: Raphael Tomai appeals against his conviction by the National Court at Lorengau on 13^th February 2017 upon a charge of sexual penetration of a girl under the age of 16 years, a charge under s. 229A Criminal Code, Ch.262. The learned trial Judge found that the appellant forcefully had sexual intercourse with his step-daughter then aged 15 years.
   

Grounds of appeal

2. The appellant filed his own Form 1 “Prisoner Appeal” in which the grounds of appeal are pleaded in general and somewhat vague terms. He was recently granted legal aid by the Public Solicitor who has submitted the following as specific grounds of appeal:
   
   • (1) That the learned trial Judge erred in admitting into evidence the prosecutrix’s Clinic Book as a “public document” pursuant to the Evidence Act, Ch.48; and
   • (2) That the learned trial Judge erred in admitting into evidence the Medical Report relating to the examination of the prosecutrix after the alleged sexual assault.
     

Submissions

3. At the commencement of hearing, Mr Tusais informed the Court that the State conceded the first ground of appeal but would argue that the evidence nevertheless disclosed the offence of rape having been committed, and the Court would be invited to find the alternative verdict of rape against the appellant.
   
4. Upon the State’s concession, Mr Kirriwom agreed with Mr Tusais that as the only evidence of the prosecutrix’s age was found in the Clinic Book, the charge under s. 229A could not be sustained. Mr Kirriwom also argued that the tender of the Medical Report into evidence was contrary to s. 37(1) Evidence Act which requires the author of a medical report to tender such report by way of an affidavit. Rather, it was tendered through a doctor other than the doctor who examined the prosecutrix and who wrote the Report.
   
5. The State asked the Court to note that the Medical Report merely stated that the girl’s hymen was not intact, and that did not help either the State or the Defence. Mr Tusais nevertheless insisted that there is still sufficient evidence to find the alternative verdict of rape by virtue of ss. 541 and 547 Criminal Code.
   

Law

6. Pursuant to s. 23(1) Supreme Court Act, Ch.37 to succeed on an appeal against conviction an appellant must establish that:
   
   • · the verdict is unsafe or unsatisfactory; or
   • · the conviction entailed a wrong decision on a question of law; or
   • · there was a material irregularity in the trial.
     
7. The Supreme Court must consider that a miscarriage of justice has occurred; John Beng v The State [1977] PNGLR 115.
   

Consideration

8. We accept the concession by the State to be quite proper. Indeed, the Clinic Book is neither a “public document” nor a “business record” as defined under the Evidence Act. In the case of young children, it is a book that is obtained after the birth of a child to record personal details including date of birth, name of child and name of mother. It is also used to record details of clinic attendances and treatment received. It is kept by the mother and taken to the clinic when she attends with her child.
   
9. In relation to the Medical Report, we reject Mr Kirriwom’s submissions for the reason that his client was represented by the Office of the Public Solicitor at his trial, and Defence counsel consented to the Medical Report being tendered into evidence.
   
10. We also agree that the Report does not prejudice the appellant because it does not implicate the appellant in any way.
    
11. That view however is contrary to the trial Judge’s conclusion that the Medical Report corroborates the prosecutrix’s allegation of being sexually assaulted by the appellant. Curiously, his Honour concluded that there being no evidence of how the hymen had been ruptured, it had to have been caused by the appellant when he assaulted her as she alleged. See Appeal Book pages 80:27 – 81:6.
    
12. It is obvious to us that his Honour was strongly influenced by this into believing the prosecutrix’s testimony over the appellant’s, and subsequently deciding verdict against him. With respect, we find his Honour erred in fact and law in doing so.
    
13. In the circumstances we consider it would not be safe for this Court to find the alternative verdict of rape, even it that course was properly open to this Court.
    
14. Section 541 Criminal Code says that a person indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences. There is no statutory alternative to an offence under s. 229A(1).
    
15. Section 547 Criminal Code states that if the evidence discloses another offence than the offence charged with, the accused may be convicted of the other offence provided if he was charged with the other offence, he could have been found guilty of the offence actually charged. The question then is: could the appellant have been found guilty of sexual penetration of a girl under 16 years of age if the appellant was charged with rape? Again, there is no statutory provision that allows for this.
    
16. We find the State’s submission on alternative verdicts to be misconceived.
    

Conclusion

17. We conclude that a miscarriage of justice occurred in the trial Judge reaching the verdict against the appellant. Pursuant to s. 23(3) Supreme Court Act, we uphold the appeal and quash the conviction of the appellant.
    

Order

18. The Court orders that:
    

(1) The appeal is allowed.

(2) The conviction of the National Court is quashed and a verdict of not guilty be entered.

Judgment accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent