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Raka v Gume [1998] PGDC 6; DC29 (4 June 1998)

Unreported District Court Decisions

[1998] PNGDC 12 - AGNES RAKA V MARON GUME

[1998] PNGDC 12

PAPUE NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 4 OF 1998

AGNES RAKA (Complainant)

v

MARON GUME (Defendant)

Kimbe

P Monouluk M

30 April 1998

28 May 1998

4 June 1998

FAMILY LAW - Affiliation proceedings - evidence - cross-examination of witness to put adverse case.

Cases referred to:

Browne v Dunn [1894] 6 R 67 (HL), Thomas v Van Den Yssel (1976) 14 SASR 205, The State v Ogadi Minjipa [1977] PNGLR 293, The State v Manasseh Voeta [1978] PNGLR 119, The State v Saka Varimo [1978] PNGLR 62

Representation:

Counsel/Representative:

Complainant: In person

Defendant: In person

P Monouluk M:

N1>[1]����� The complainant Agnes Raka is seeking an order for maintenance for her illegitimate child pursuant to s51 of the Child Welfare Act (Ch276).

N1>[2]����� The complainant alleges that whilst doing her final year in high school in 1995 she befriended the defendant and in November 1996 she conceived. On 27 June 1996 she gave birth to one Theresia Maron. The defendant admitted having had sexual relationship with the complainant, in fact, they had had sexual intercourse six (6) times. The defendant however denied paternity insisting that other men had had affairs with the complainant during the existence of their relationship. The court is therefore asked to determine whether the defendant is in fact the wrong person at the right time.

N1>[3]����� The complainant called two (2) witnesses . In her own sworn evidence the complainant said it was the defendant who impregnated her and after birth the defendant's mother has been very caring providing food and money to the child. Complainant first witness (her father) also supports her claim of assistance to the child from defendant's mother. The third witness gave interesting and undisputed accounts of defendant's two (2) admissions of impregnating the complainant. In November 1996 the defendant before the witness and her family admitted of being the impregnator. On the second occasion he made the same remarks again before the witness and her husband a month later in December.

N1>[4]����� The defendant called two (2) witness. In his own sworn evidence the defendant admitted having sexual intercourse with the complainant six (6) times between 14/12/94 and 4/12/95. The defendant with ease was able to recall all the exact dates of the sexual encounters yet interestingly enough when questioned by the court could not recall the exact days of the week. On the other hand, his two (2) witnesses who admitted having numerous sexual intercourse with the complainant had difficulty remembering the dates as appose to the defendant. In the continuation of his evidence the defendant made a startling revelation that the complainant was unsteady and had seven (7) other sexual partners, two of which were called as the defendant's witness of the complainant's unsteadiness. I must admit that I do find these two (2) witnesses quite reliable. Anyway, what is the position at law where a defence is not put to a prosecution witness in cross examination.

N1>[5]����� In the State v Manasseh Voeta [1978] PNGLR 119 Wilson J applied the rule in the famous case of Browne v Dunn [1894] 6 R 67 (HL) and followed the State v Ogadi Minjipa [1977] PNGLR 293 and the State v Saka Varimo [1978] PNGLR 62. In the State v Manasseh Voeta (supra) the accused was charged for attempted undue influence. It was alleged that the accused a candidate in the 1977 National Election, had hosted an election party and told the people present that fines and imprisonment could be imposed on them if they fail to vote for him thus obstructing the free exercise of the franchise at the National Election. The accused denied making the alleged threats saying that the meeting was called purposely to discuss problems in the area - that electioneering talk was discouraged.

N1>[6]����� Prior to dealing with the charge against the accused Wilson J made some observations concerning the impeachment of the credit of a witness, and referred to the earlier decisions of the then Prentice DCJ as follows:-

"The principle is well established in this court and elsewhere that, if it is desired to impeach the credit of a witness on any particular topic or his evidence generally, he should be cross-examined about that topic or about any matter on which adverse evidence will be called, so as to give him a chance to make any explanation open to him, unless he has had ample notice of the matter before hand or unless perhaps, his story is patently incredible."

N1>[7]����� In Thomas v Van Den Yssel (1976) 14 SASR 205 at 206 Bray CJ stated the principle in these words:-

"If it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Huschell said . . . 'it is absolutely essential to the proper conduct of a cause'."

Wilson J continued with Prentice DCJ ruling that:-

"The principle to which I have been referring illustrates an obvious rule of justice. The reasons for the principle are obviously that the witness ought to have an early opportunity to give what explanation he can of the matter in question and that he should not be disbelieved, nor should any adverse inferences be drawn against him, because of other evidence relating to the topic or which he has been unable to comment upon reasonably promptly or at all."

N1>[8]����� In this case having completed its case the defence, upon an application was granted leave by Wilson J, to recall state witnesses for further cross-examination. Despite that the problem was not overcome completely. Wilson J, however, had to rule against the accused and find him guilty.

N1>[9]����� In the State v Ogadi Minjipa (supra) the accused was charged with stealing. The State case was that the owner of the money had kept his money in his locked room. The accused knew where the money was and after a drinking party a fight broke out, the accused broke into the room where the money was kept and stole it. Sometime later the accused promised to repay but accused himself denied in court.

N1>[10]��� There was no cross-examination on the victim to show that he was drunk at that time and could not recalled the incident, nor that he was incorrect in his evidence against the accused. Other state witnesses were not cross-examined as to the accuracy of their accounts. However, Prentice DCJ found the accused guilty despite his denials - there were enough circumstantial evidence.

N1>[11]��� His Honour concluded with reference to general evidential procedure as follows:-

". . . that defence counsel do their clients no good by not opening in cross-examination of state witnesses the version upon which the defence relies. If it is to be suggested that state witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit if this course is taken. I draw your attention to Browne v Dunn (supra) which sets out the duty of counsel and makes comments as to the credibility of the opposing case where this course is not taken. The comments of Lord Heschell, Lord Morris, Lord Halsbury and Lord Bowen appear to me to be of plain common sense suitable to and applicable in our courts."

N1>[12]��� Even if the above analysis of the law may not be correct I will not have difficulty finding, on the balance of probabilities, the defendant as being the father entirely on the facts before me. I do accept the unsteadiness of the complainant, however, of the eight (8) persons involved with her only one has to be the father.

N1>[13]��� The evidence against the defendant is overwhelming. There is sufficient evidence to show that the defendant's mother has been caring for the child which I believe she knows its her grand daughter. Nor is there any rebuttal or explanation of the complainant's third witness' evidence of the defendant's admission. Coupled with that, the actual presentation of the child before the court reveals body complexion and facial appearance very similar to the defendant.

N1>[14]��� Based on those assessments, I am of the view that the defendant is infact the father of the child - Theresia Maron.

N1>[15]��� Orders accordingly.