Kaina v The State [1990] PNGLR 292 (28 June 1990)

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CRIMINAL LAW - Particular offences - Rape - Defence of valid subsisting marriage - Sufficiency of evidence of - Criminal Code (Ch No 262), s 347.

LAW REFORM - Criminal law - Particular offences - Rape - Within marriage - Time for recognition - Criminal Code (Ch No 262), s 347.

Where marriage to the prosecutrix was raised as a defence to a charge of rape, the trial judge accepted and relied upon, as evidence of dissolution of the marriage, an order of the local Village Court on a complaint to it which appeared to relate to compensatory proceedings for the behaviour of the husband to the wife.

(1)�� The trial judge had misdirected himself on a question of law by relying on the compensatory order of the Village Court as evidence of a fact in issue in the trial, namely, the existence or otherwise of a subsisting valid marriage. The order of the Village Court was made in civil or administrative proceedings where the criminal standard of proof was not required.

(2)�� The verdict was unsafe and unsatisfactory in that material upon which the question of the existence or otherwise of a subsisting valid marriage might have been determined was not identified nor were findings as to relevant custom made.

Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122.

WOODS J: The appellant is appealing against his conviction on a charge of rape. The grounds of appeal as amended are:

(a)�� That there was no or insufficient evidence to establish that the subsisting customary marriage between the prosecutrix and the appellant had been dissolved in accordance with the customary rules and practice applicable to both parties to the marriage and if the marriage was still existing then there could not be an offence of rape.

(b)�� The conviction on the charge of rape was and is against the weight of the evidence.

The principle on hearing an appeal from a judge alone and not a jury is that the court is entitled to make up its own mind on the evidence as it appears from the transcript. The appellant submits here that the Supreme Court could overturn the trial judge if it is satisfied that the trial judge�s conviction is unsafe and unsatisfactory.

Whilst it is quite clear that an appellate court can make up its own mind on the evidence it must still be satisfied that the trial judge has erred in his analysis or assessment of the evidence. And an appeal court must never forget the obvious; that where the judge at first instance has had the opportunity of seeing the witnesses, where it turns on the matter of credibility, where they have been cross-examined and where he has deliberately come to a conclusion as to which side has given the correct version, it is very difficult to induce a court of appeal to differ from the decision of the judge at the first instance.

As Barwick CJ said in the case Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122 at 126: �The case, in my opinion, is another instance of the tendency of appeal courts to exercise their undoubted power to reverse a primary judge merely because they hold a view of the facts different from the view he has taken, a view not unreasonable in the circumstances of the case. The appellate court should restrain its use of its power to those cases in which it can confidently be said that the primary judge was wrong in his conclusions of fact.�

We as a court of appeal should be circumspect in interfering with judgments of trial judges where experience is almost invaluable. The transcript is a poor substitute for presiding throughout a trial.

The appellant submits that the trial judge erred in finding that the marriage between the appellant and prosecutrix had been dissolved. The evidence was that the parties were married by custom and had been married and living together for about five years. The evidence was then that after some years of living together as husband and wife the accused took another woman and left the victim. The evidence was that she was forced to go elsewhere and get another man.

She went to the local Village Court to sort out any possible claim over this alleged marriage and had the marriage declared dissolved. The evidence from the prosecutrix was that he had chased her away and she then started living with another man.

His Honour heard evidence on the marriage and gave careful consideration to this evidence and I find no error in his assessment. He very carefully noted that what may be the correct practice in the cultural area may have been varied in the urban situation and the reality of urban life does not permit adherence to those traditions in a rigid fashion. He found that the relationship was a marriage in the eyes of all concerned and I respect his analysis and I find no error in his reasons. He then found that the Village Court had agreed that the marriage was dissolved. I therefore dismiss this first ground of appeal.

On the weight of the evidence, the trial judge had only the evidence from the victim and the State to consider. Whilst there were some inconsistencies in the State evidence the trial judge had no other evidence to consider. He carefully analysed all the evidence in his judgment and bearing in mind that the transcript is a poor substitute for presiding throughout the evidence, I can find no error in his analysis of the evidence. As Lord Sumner said in the case SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:

�Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII, r 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he had failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.�

As I find no error in the trial judge�s assessment of this evidence I therefore dismiss the second ground of appeal.

HINCHLIFFE BROWN JJ: This was an appeal (brought under s 4(2) of the Supreme Court Act (Ch No 37) in reliance upon s 23(1)(a)) against a conviction for rape. It is an appeal against a decision of Amet J at Waigani where judgment was delivered and sentence handed down on 22 December 1988. The appellant was also found guilty of assaulting the prosecutrix. The trial judge sentenced the appellant to 4 years imprisonment in hard labour for rape and 7 months imprisonment in hard labour, (to be served concurrently with the rape sentence) for the assault.

The short facts were that the prosecutrix was at work at Gordons when the appellant entered the premises, assaulted her and afterwards forced her, whilst brandishing a knife, into her bedroom where sexual intercourse without her consent took place. This happened at about 10 am.

A material fact in issue was whether the prosecutrix remained married to the accused. Section 347 of the Criminal Code (Ch No 262) provides a definition of rape which precludes a conviction, where the prosecutrix is married to the accused. The appeal is concerned with the trial judge�s finding that a customary marriage between the appellant and the prosecutrix had been dissolved. The written grounds relied upon by counsel for the appellant were varied to include, inter alia:

1.�� that his Honour erred in finding the marriage between the appellant and the prosecutrix had been dissolved;

During the trial a lengthy voir dire was conducted on the aspect of, first, the supposed customary marriage between the prosecutrix and the accused and secondly, on the dissolution of such marriage. The learned trial judge relied upon a finding by the Saraga Village Court as to dissolution. There is evidence that the prosecutrix, some six months after the time of the Village Court hearing remarried and that this offence occurred after such remarriage.

Other findings of fact material to the appeal were that the accused assaulted the prosecutrix resulting in physical injuries seen by the doctor on later examination. Such physical injuries were consistent with the complainant�s version of events. The trial judge found the accused�s explanation for being in the house with the door locked and a knife in his hand to protect himself from the prosecutrix�s new husband with the connivance of the prosecutrix as most improbable. The trial judge preferred to accept the evidence of the prosecutrix and found as fact that the accused had pulled the prosecutrix into the house and locked the door to prevent her escape. The trial judge further accepted the prosecutrix�s evidence that the knife was used to threaten her, contrary to the version pressed by the accused.

The trial judge, where there has been conflict in evidence, has clearly preferred that of the prosecutrix to that of the accused, both as to logic and the plain improbability, as the trial judge puts it, �that after the accused has assaulted her, the prosecutrix would give him a knife to defend himself� against the possible assault of the prosecutrix�s new husband.

We find (we do not need to go further into the facts supporting the evidence of the rape) sufficient to say we find no reason to cavil with the trial judge�s findings of recent complaint and corroboration. We need not concern ourselves with those aspects on this appeal.

The basis of the appellant�s argument before this Court as we understand it, was, that notwithstanding the imposition of a fine and an order for compensation, the Saraga Village Court was not minded as to the question of dissolution of any subsisting customary marriage, but rather was dealing with the complaint of the prosecutrix. That complaint was an allegation of the aggrieved wife that she had been thrown out of her house by this accused. Consequently counsel urged that it would be dangerous to accept an award of compensation in this circumstance as direct evidence of a dissolution of this marriage. There was no factual record before the trial judge as to the material considerations of the Village Court on which a decision was impliedly made as to dissolution. Secondly, on the obiter dicta of Kidu CJ in Burunge v Kaupa (Supreme Court, SC 258, 26 August 1983, unreported) some proper evidence by way of experts as to custom must be adduced where the status of such a marriage is in issue.

Counsel for the appellant says that this Court then cannot be satisfied as to the factual considerations of the Village Court. Since there was no other particular evidence of custom before the trial judge on which he could safely rely, the finding of the trial judge, as to the dissolution of the subsisting customary marriage is unsafe and unsatisfactory. Counsel further says that, to accept the presumption of other witnesses in the trial where there was no direct evidence of customary dissolution meant that the trial judge had misdirected himself.

The evidence of the Village Court�s findings is found partly in the statement of Sikos Bilon on the voir dire. He stated that he was one of the three Village Court magistrates at Saraga No 2, who heard on the 5 April 1988 a court case about marriage problems involving the accused and the prosecutrix. Her complaint was that �her husband chased her out�. The accused gave evidence at the Village Court and admitted that he chased the woman out. The evidence in chief given by the Village Court magistrate included:

A:�� Court asked (accused) three times if he would take back woman he said, he chased her out. Court impose fine of K500.

A:�� For five years she had leaved (sic) with him, K100 for each year. He was to pay that before chase woman out and court charged K10 court fine.

Later on the court order was tendered but it has been lost and does not form part of the appeal book.

Cross-examination of this witness elicited that two months was allowed to pay the compensation. Further cross-examination was directed to suggest that the prosecutrix was deemed to remain with the accused unless the compensation was paid.

We consider this a curious suggestion on the part of trial counsel, for the parties did not cohabit after the accused had �chased her out�. Although the magistrate did not adopt the suggestion, such a suggestion would mean, despite the Village Court order, that the accused could decide unilaterally that he remained married (notwithstanding his act in throwing his wife out) by not paying compensation.

The trial judge�s difficulty is perhaps exemplified by the accused�s evidence. In his evidence on the voir dire he said of the Village Court, �true I did not chase her� yet he admitted the complaint.

�Q:�� They tell you to pay K500 compensation for living with her for 5 years.

He had not paid the money and thus, on the voir dire, there is the appellant�s subjective test of his subsisting marriage. By not paying, he leaves the door open, as it were for her to return from her self-imposed separation. The trial judge was satisfied on hearing all the witnesses that there was a customary marriage which had come to an end at the time of, or contemporaneously with the Village Court order. Recognition by the Village Court of such a factual situation in relation to the subsisting marriage is difficult to reconcile with the terms of its order.

It must have seemed to the trial judge that the accused�s denials of dissolution were neither logical nor in accord with the evidence of separation for some seven months after the Village Court case. In that time the prosecutrix had remarried, obviously feeling free to do so. None of her relatives suggested in evidence that she had done wrong by remarrying or was prevented by custom from so doing. To find that there had been no dissolution would effectively mean the prosecutrix was a bigamist.

Counsel further argued that in the absence of expert evidence of custom on dissolution, it would be unsafe to act on anything less. Consequently, the trial judge had erred. Putting it another way as the prosecution had failed to furnish such compelling evidence on dissolution, the trial judge could not be satisfied beyond reasonable doubt that the subsisting marriage was no more. Counsel cited Burunge v Kaupa for the proposition that an expert on custom is required. Kidu CJ said obiter in that case that �the court ought to have enquired about the customary situation�. That case involved an appeal against a sentence for adultery that was manifestly excessive. There was no appeal against conviction, the accused having admitted his guilt. The Chief Justice�s comments cannot be read to mean that customary or clan leaders well versed in lore must be called in every instance when a question of custom arises. The trial judge may inform himself by any manner of means provided they are relevant and admissible. In this case, on the voir dire the Village Court magistrate tendered the record of the court, gave evidence and was cross-examined. Such a Village Court finding although prima-facie inadmissible was not objected to, and was admitted into evidence on the voir dire. From a consideration of the tenor of the magistrate�s evidence and the terms of the order, there were clearly different issues before the Village Court and the trial judge. The prior Village Court determination was not only pursuant to a different complaint, but involves customary considerations in lieu of statutory offences and more importantly involves different standards of proof. The Village Court may be equated in this instance with a quasi-administrative tribunal, making a decision in a civil field while the trial judge under the Criminal Code must be satisfied on the criminal standard.

In the course of the voir dire, the trial judge had evidence of a number of matters touching on the subsisting marriage, illustrating factors on which he could have found a dissolution. But he expressly stated that he relied on the decision of the Village Court as evidence of such dissolution. Such a course is wrong on the authority of the extension of the principle in Hollington v Hewthorne & Co Ltd [1943] 1 KB 587, where evidence is such prior civil or administrative decisions would be inadmissible in a criminal action. The relevant parts of the Village Court finding is not much help in deciding what issues were actually before the Village Court. However, whatever considerations were given to the complaint of the prosecutrix by the Village Court magistrates, they were not the same considerations as that of the trial judge, that much is clear. In giving his reasons following the voir dire for finding that the prosecutrix was then not married, the trial judge said:

�I am also satisfied the marriage has been dissolved by the Village Court at Saraga, 6-mile. I am satisfied, the woman applied to have the marriage properly dissolved by the Village Court for whatever ruling. I accept evidence of the Village Court Order that the accused was ordered to pay K500 compensation to a woman for a dissolution of marriage. A properly constituted Village Court with jurisdiction had determined the matter and terminated marriage. I am not able to enter into pros and cons of that. The woman is now said to have remarried.�

The understanding of the prosecutrix, her brother and the accused as to the meaning of the Village Court proceedings was so confusing and disparate, as to be worthless. We have previously set forth material parts of the Village Court magistrate�s evidence. The court order book was tendered, (but was not included in this appeal book) it would appear from cross-examination of the magistrate that orders were:

We cannot be satisfied on any of the above that the Village Court actually made an order dissolving the customary marriage. Rather it seems to have related to compensatory proceedings for the behaviour of the accused towards the prosecutrix.

For those reasons the trial judge has misdirected himself on that crucial aspect. The trial judge cannot treat the Village Court decision as the basis for being satisfied of the fact that the prosecutrix at the date of trial was not then married to the accused. Counsel for the appellant does say the verdict was unsafe and unsatisfactory, referring the court to the principles and decision in the case of John Beng v The State [1977] PNGLR 115. That was a case where counsel for the appellant considered that the trial judge properly directed himself as to the relevant law but had misapplied the facts. Here however, the trial judge has misdirected himself on the effect of the Village Court order and consequently on a question of law.

Counsel for the appellant orally argued the proposition that the verdict was unsafe or unsatisfactory. There is evidence which, when viewed in its entirety, does afford the trial judge with a basis for finding as he did, that there has been a dissolution. But he did not rely on any of those various matters, but rather solely on the finding of the Village Court. Those various matters which go to establishing the dissolution of the customary marriage really arise by inference for neither trial counsel appears to have assisted the court in determining this issue one way or another, rather they seem to have fallen back exhausted after apparently aimless examination and cross-examination on the question of marriage. Was it unsafe or unsatisfactory then by reason of the failure to advert to such material?

With his advantage, hearing and seeing the witnesses coupled with his experience in matters pertaining to custom, may this Court follow the trial judge notwithstanding his failure to advert? Clarkson J, obiter dicta, in Himson Mulas v The Queen [1969-70] P & NGLR 82 at 106-107 says:

�The criticism here is that the trial judge has not in his reasons expressly referred to a circumstance which would require especial care to be exercised when drawing some inferences against the accused. There is nothing to show that the trial judge did not take this circumstance into account and I do not think that his failure to mention the matter is any more fatal to the verdict than would be the fact that he does not expressly state either that he has preferred the evidence of some witnesses to others or that he has disregarded some inadmissible evidence.�

But this Court cannot make findings of fact on matters where the judge under appeal has been silent, to validate as it were, his decision. The circumstances then that give cause for finding the verdict unsafe or unsatisfactory are the absence of cogent evidence as to custom to prove the fact of the dissolution from the inferences available, coupled with the confusion surrounding the matter of the complaint to the Village Court. The verdict should be set aside on the strength of s 23(1)(a) of the Supreme Court Act.

Again, where an issue for decision before the trial judge is whether or not there is a subsisting marriage, and he has misdirected himself in law on this very question, s 23(1)(b) provides that this Court shall allow the appeal, subject to subs (2).

�23(1) Subject to Subsection (2) on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that:

(a)�� the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)�� the judgment of the Court before which the appellant was convicted should be set aside on the grounds of a wrong decision on any question of law; or

(2)�� Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.�

We turn now to subs (2). We have regard to the concept of miscarriage of justice explained in the judgment of Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 cited by Frost J in Himson Mulas v The Queen [1969-70] P & NGLR 82 at 100 where he said that since the relevant law was not properly applied, he was satisfied that the appellant may thereby have lost a chance which was fairly open to him of being acquitted.

There were facts relevant to the inquiry at the trial on the question of dissolution. We have not critically examined the effect of the evidence of the appellant on the voir dire, for it is confusing and we consider it unnecessary to go further. The trial judge appears to have accepted the prosecutrix however, where a conflict between the competing witnesses arose and that course was open to him. The appeal book shows some 63 pages (over a total of 131) of the transcript of evidence were given over to the voir dire, primarily on the question of a valid subsisting marriage. A number of witnesses were called as to custom and questions particular directed at the marriage aspect. Only incidentally was the dissolution aspect considered. But the complainant and the appellant were subject to cross-examination on the question of dissolution where their subjective views were elicited. The trial judge may take these views into account with the totality of evidence on the question of the existence of a valid subsisting marriage, but he expressly stated that he relied on the evidence of the Village Court finding. Had the trial judge in his reasons adverted to factors which I have mentioned previously, relevant and admissible on the question in issue then this Court may have been satisfied that no miscarriage of justice had occurred.

This Court cannot make findings on fact to cure the absence of such a finding of a material question in issue.

�Further, the accused�s loss of memory, if it does not increase the onus of proof, as Lord Parker said, is a matter which is to be considered in relation to the onus of proof which is fundamental in a criminal trial. The rule propounded in Chiu Nang Hong�s case, in my opinion, is a sound one. Its basis seems to me to be that justice must be seen to be done. The line may be difficult to draw, but I have reached the conclusion that the present case falls on the same side of the line as, Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279 and that, in his reasons for decision, the learned trial judge should have made it clear that he had taken into account that by reason of the appellant�s loss of memory, he had not heard the appellant�s side of the case, but was nevertheless satisfied beyond reasonable doubt of his guilt. Accordingly, in my opinion, this ground of appeal succeeds and the conviction cannot stand.�

The ground of appeal to which Frost J was referring, was that the learned trial judge had failed in his consideration of the evidence to direct himself as to the effect of the accused�s failure to remember the events in question.

In this case, the trial judge has misdirected himself on a question of law: see Hollington v Hewthorne & Co Ltd. He had relied upon a �finding� of the Village Court, when such a �finding� was not available to him.

We comment on one further aspect. So far as we are aware, States in Australia have legislated to recognise the possibility of a conviction for rape by a husband notwithstanding a subsisting marriage. The implied common law consent arising from the marriage contract has been abolished so that for instance, if the spouses are living separate and apart, a wife may negative consent. It is this implied consent which is enshrined in s 347 of the Criminal Code; s 347 provides:

(iv)�� by means of false and fraudulent representations as to the nature of the act; or

Legislative amendment to s 347 to afford married women in the circumstances of this case, greater protection under the law is long overdue. A starting point on the question may be C T Corns, �Liability of Husbands for Rape-in-Marriage � The Victorian Position� (1983) 7 Criminal Law Journal 102.

In this case the verdict should be set aside. Notwithstanding the provisions of s 33(1) of the Supreme Court Act, we do not consider a new trial appropriate. Much delay has been occasioned and the appellant has been in custody now for some 18 months. It cannot be said as the evidence now stands that the appellant would be convicted. He has served his sentence in respect to the conviction for assault.

The appeal should be allowed, the conviction quashed and a verdict of acquittal entered in respect of the rape.

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Papua New Guinea Law Reports

Kaina v The State [1990] PNGLR 292 (28 June 1990)

Papua New Guinea Law Reports - 1990