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Didei v The State [1990] PNGLR 458 (2 November 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 458 - Charles Didei v The State�

[1990] PNGLR 458

SC399

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DIDEI

V

THE STATE

Waigani

Kapi DCJ Sheehan Salika JJ

24 July 1990

2 November 1990

CRIMINAL LAW - Particular offences - Rape - Evidence - Corroboration - Warning on uncorroborated evidence - Failure of judge to want and record warning - Miscarriage of justice.

CRIMINAL LAW - Appeal and new trial - Miscarriage of justice - Rape - Conviction on uncorroborated evidence - Failure of judge to warn and record warning - Miscarriage of justice.

Held

The failure by a trial judge to warn himself of the danger of accepting the uncorroborated evidence of the prosecutrix in a rape trial and the failure to record that he has so warned himself constitutes a miscarriage of justice sufficient to warrant a retrial.

McCallum v Buibui [1975] PNGLR 439 at 445 and Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279 at 1285, considered and applied.

Cases Cited

Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279.

McCallum v Buibui [1975] PNGLR 439.

R v Trigg [1963] 1 WLR 305.

Appeal

This was an appeal against conviction on a charge of rape.

Counsel

E Kariko and G Gendua, for the appellant

M Unagui and S Madana, for the respondent

Cur adv vult

2 November 1990

KAPI DCJ SHEEHAN SALIKA JJ: The appellant was convicted on a charge that he on 7 December 1986, at Mt Hagen, committed rape upon one Dambo Steven. He now appeals against that conviction and the sentence of five years imprisonment with hard labour that was imposed for this offence.

The amended grounds of appeal were:

(a)����� That the conviction was unsafe and unsatisfactory and against the weight of the evidence in that the prosecutrix gave three different versions of events relative to the alleged rape.

(b)����� That conviction was unsafe and unsatisfactory in that there was no medical evidence to prove that sexual intercourse took place that night and that as a result the prosecutrix being a virgin had her hymen torn and she bled.

(c)����� That the trial judge had erred in law in that he attached much weight to the evidence of the two State witnesses namely James Bohon and Steven Baliho who were present in court at the trial when the prosecutrix had given her evidence in examination in chief and the first part of the cross-examination.

The appellant seeks orders that the conviction be quashed and set aside.

The brief facts of the case were that: On the evening of 6 December 1986, the prosecutrix was at her place with her parents at Kundeng. The appellant went over and picked her up and told her parents he would take her to his house in Mt Hagen town to stay with him and his wife. The appellant was a cousin-brother to the prosecutrix so the parents expected no trouble. The appellant took the girl and drove towards Mt Hagen at about 6 pm to 7 pm. He turned into the airport road and went to the disco at the Plumes and Arrows Hotel. They were there until about 3 am when he told her they were going home.

Instead of going home he took her towards the Mt Hagen show grounds where there was no one about. There he grabbed her and asked to have sex with her. She refused and the appellant punched her several times on the face. He then forced her to the ground and had sexual intercourse with her. She did not consent. After that they then proceeded to Mt Hagen town where they went to the man�s uncle�s house. When the vehicle came to a stop the girl ran away to her boyfriend�s house nearby and reported the matter to them. It was later reported to the police.

Counsel for the appellant submitted that certain findings and conclusions and application of the law by the trial judge were wrong. The testimony of the prosecutrix was such that she gave three different versions as to what happened and therefore there must have been real doubts created in the trial judge�s mind as to her credibility.

Mr Kariko also submitted there was no corroborative evidence of the act of rape. The accused denied sexual intercourse. The medical report was not in evidence, and the only evidence of penetration came from the prosecutrix. There were, he said, dangers in accepting the prosecutrix�s evidence alone on the element of penetration and the trial judge should have warned himself of such danger.

The prosecutrix did not complain about rape, but an attempted rape. Without the medical report being in evidence, that too, it was submitted, should have placed the trial judge on guard as to whether there was indeed penetration.

In summary then, the appellant�s complaint is that the learned trial judge accepted the story of the complainant despite these inconsistencies and without any corroboration of her evidence at all.

The evidence recorded does suggest some discrepancies in the prosecutrix�s evidence as to the sequence of events. The fact that she complained initially only of attempted rape does raise the question as to whether the offence for which the appellant was charged was accomplished. Without the medical report or other evidence the victim�s story stands alone.

There is of course no rule of law which requires that the evidence of a woman complaining of rape shall be corroborated. If a court is satisfied that the complainant is telling nothing other than the truth, then it may proceed to convict on her evidence alone. But it has long been recognised that while a court is entitled to accept the evidence of a complainant and convict on that evidence alone without corroboration, experience has shown that it is dangerous to do so.

The reason is easy to understand. Allegations of this nature are easy to make but difficult to refute. It may be relatively easy for a girl to implicate a man in an allegation of rape and often so very difficult for a man to do any thing but deny it. Therefore a rule of practice has developed, one falling short of the rule of law, which requires that the court should give due warning of the danger of acting on uncorroborated evidence in sexual cases. In fact, failure to advert properly and clearly to this rule of practice has been found to constitute an error of law sufficient to ground an appeal against conviction.

In McCallum v Buibui [1975] PNGLR 439, Frost CJ stated at 445:

�Under the common law in force in England, which is applicable in Papua New Guinea, the warning is to be given in all cases of sexual offences, even where there is ample evidence corroborating that of a complainant: R v Trigg [1963] 1 WLR 305. In Australia, although the rule of practice is applied less rigidly, it is only dispensed with where the corroborated evidence is �indisputable� �substantial� or �ample�.�

The case before us was not a case where there was obvious, indisputable, or ample corroboration; in fact there is evidence of discrepancy in the prosecutrix�s story, both as to her description of the sequence of events that night, and a challenge to the very nature of her complaint. There are no reasons or explanations recorded in the judgment showing how those discrepancies have been overcome, or why, despite these anomalies, the prosecutrix should be believed. Nor did the learned trial judge specifically advert to the danger of convicting on the evidence of the prosecutrix alone.

In McCallum v Buibui, cited above, Frost CJ also drew assistance from a Privy Council decision, Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279. In that case the Privy Council said, at 1285:

�Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant�s evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships� view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge�s mind upon the matter should be clearly revealed.�

That quotation is a succinct summary of the view of this Court. A conviction in rape or any sexual matter is always a very serious matter and can result in severe penalties. Despite the difficulties of proof that often arise in these cases, uncorroborated evidence must be closely scrutinised and the danger of relying on it alone must be seen to be recognised.

We are of the view that there is no need of a �formula� type of pronouncement regarding corroboration where there is in fact obvious and substantial corroboration, and the trial judge points to it as being relied on to support a prosecutrix�s story. But when there is no corroborative evidence the warning must be given and recorded.

The court considers that the failure of the learned trial judge to warn himself of the danger of accepting the victim�s evidence without corroboration, and recording that he had in fact done so, is in our view, fatal to this conviction. It must be set aside and the accused acquitted.

Appeal allowed

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.