PNG Law Reports 1994
[1994] PNGLR 104
N1189
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
STUART HAMILTON MERRIAM
Goroka
Sakora J
8 March 1993
10-12 March 1993
15 March 1993
17 March 1993
CRIMINAL LAW - Carnal knowledge against the law of nature - Criminal Code Ch 262 s 210 - Consent not a defence.
EVIDENCE - Rule in Browne v Dunn - Failure to cross-examine opposing party's witness - Cannot impugn evidence in final address.
EVIDENCE - Rule in Browne v Dunn - Party giving evidence of matters not cross-examined - Damage to credibility.
EVIDENCE - Absence of proximate complaint - Not evidence of consent - Factors inhibiting complaint by child victims.
EVIDENCE - Corroboration - Desirability of corroboration of sexual offence victims - Necessity for warning of dangers of convicting without corroboration - Circumstantial evidence of opportunity as corroboration.
Facts
On a trial on two counts of carnal knowledge against the order of nature, contrary to s 210 of the Criminal Code Act Ch 262, the offences were alleged to have occurred about ten years before, when the male victim was about 8 or 9 years of age and living with the male defendant, an expatriate missionary of 69 years at the time of trial. The defendant denied any sexual molestation of the victim and alleged that mala fides explained the victim's allegations. In final submissions, defence counsel denied the allegations, but said if they were true, the victim consented. The allegations of mala fides and consent were not put to prosecution witnesses. It was also suggested that lack of complaint by the victim indicated either that the alleged offences did not take place or that the victim consented.
Held
1.       Consent is not a defence to a charge of an offence under s 210 of the Criminal Code.
2.       Applying the rule in Browne v Dunn (1893) 6 R 67, failure to cross-examine a witness who has given relevant evidence for the opposing side amounts technically to acceptance of the evidence in chief, which cannot then be impugned in the party's final address. A party giving evidence of matters which ought to have been, but were not, cross-examined upon, damages his or her credibility.
3.       While evidence of complaint proximate to an alleged sexual offence is evidence of lack of consent, absence of such complaint is not evidence of consent. In cases of sexual offences involving child victims, there may be many factors which inhibit reporting of offences.
4.       In all cases of sexual offences, the tribunal of fact (a judge without a jury) should warn itself, or take into account, the danger or risk of acting upon uncorroborated evidence of the victim, even in cases where there is ample corroborative evidence. It may, nevertheless, convict on uncorroborated evidence if convinced by it of the guilt of the accused.
5.       The circumstantial evidence from both defence and prosecution witnesses as to the opportunities when the alleged offences could have occurred corroborated the victim's evidence.
Cases Cited
Papua New Guinea cases cited
McCallum v Buibui [1975] PNGLR 439.
R v Noboi - Bosai [1971 - 72] PNGLR 271.
State v Guma [1976] PNGLR 10.
State v Minjipa [1977] PNGLR 293.
State v ToVue [1981] PNGLR 8.
Other cases cited
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1.
Browne v Dunn (1893) 6 R 67 (HL).
Holman v R [1970] WAR 2.
Kelleher v R (1974) 48 ALJR 502; 131 CLR 534; 4 ALR 450.
R v Baskerville [1916] 2 KB 658; [1916-17] All ER 38; 12 Cr App R 81; 86 LJKB 28.
R v Bircham [1972] Crim LR 430.
R v Day (1841) 9 C & P 722; 173 ER 1026.
R v Lillyman [1896] 2 QB 167; [1895-9] All ER 586; 65 LJMC 195; 74 LT 730.
R v Walczuk [1965] QWN 63 n50.
R v Witham [1962] Qd R 49.
Sparks v R [1964] AC 964; [1964] 1 All ER 727; [1964] 2 WLR 566.
Counsel
C Manek, for the State.
S Kemaken, for the accused.
17 March 1993
SAKORA J:  Stuart Hamilton Merriam was indicted before me last Tuesday, 9 March 1993, on two counts of sodomy, of having carnal knowledge against the order of nature of one Iyove Apo. It was alleged that the first count related to the offence taking place on various occasions between January 1980 and 31 December 1983 at Okapa in the Eastern Highlands Province. The second count alleged that the offence took place at Goroka, in the Eastern Highlands, during the famous Goroka Cultural Show in 1982. The accused pleaded not guilty to both counts.
The trial of these charges took five days between 9 and 15 March, at the close of which I adjourned the trial till today to consider my verdict.
Ten witnesses were called to give oral testimony, seven for the State and three for the defence (including the accused himself). A total of 12 documents were tendered and admitted into evidence, all with the consent of the learned counsel for the accused.
Two of these admitted documents were police statements of two State witnesses who were eventually not called to give oral testimony.
The State's case, in summary, was that, in relation to the first count, the accused, the founder and Director of the Highlands Christian Mission (HCM) at Yagusa valley, in the Okapa District of the Eastern Highlands, had the victim, Iyove Apo, come to live with him and his wife of nearly 30 years, Carol Merriam, at their Highlands House, as a young boy between 1980 and 1983. The child had come to them when he was aged about 7 or 8 years. Whilst under the direct custody, control, and tutelage of the accused and his wife, it was the State's case that the child was sexually molested on a regular basis by the accused by penetrating the child's anus with his penis and continuing to ejaculation.
State evidence was that these acts of sodomy or buggery took place throughout the whole period of the child's stay at the Highlands House with the Merriams between 1980 and 1983, sometimes three times a week and sometimes once a month. Evidence was adduced to show that in the Merriam household the accused's wife slept alone downstairs in a separate bedroom whilst the husband slept in an upstairs room. When the child joined the household, he slept upstairs in a room of his own. Three other persons described as "hausbois" slept in an open space upstairs also on various irregular occasions. They returned to their village some nights for varying durations.
It was said on behalf of the State's case that the modus operandi, as it were, for this sexual molestation was for the accused to leave his bedroom under the cover of darkness, go to the victim's bedroom, wake him and carry him to his (accused's) room, and proceed to sexually molest him. These acts were often accompanied by kissing the child and indulging in masturbation.
As regards the second count, the State's case was that, at the 1982 Goroka Show, the HCM operated a stall at the show grounds. A shelter had been erected as part of the HCM stall housing an upstairs part, where the mission workers played music, while the downstairs had two curtained - off rooms, in one of which the accused and the child, Iyove, slept. It was there that sexual intercouse against the order of nature was said to have been committed upon the victim by the accused.
The defence case was, putting it in Dr Merriam's own words, "positively no sexual molestation" of the child ever took place on those occasions alleged, or at all. The child had been taken into the Merriam household, considered and treated as a son, the Merriams not having biological children of their own. This close relationship developed further to the Merriams being agents and instruments in the child's further education in the United States of America (USA). In this respect, a great deal was made by the defence of the great expenses and efforts expended in raising and educating Iyove - what might be biblically termed as "counting the costs".
It was suggested that, in this context, and under these circumstances, it was preposterous that child molesting of the nature (pun not intended) alleged could ever take place, let alone be imagined. It was, initially, therefore, difficult to comprehend why Iyove would go to such lengths to make such allegations. But then, the world is becoming increasingly aware, and no doubt better informed, these days that sexual abuse of children occurs more in the home by parents, relatives, and adult friends of the family, not to mention in institutional settings by those in positions of trust, power, and responsibility over the child, such as teachers, priests, and other religious leaders, than by complete strangers. First, the trust of the child is cultivated at very close quarters, then the abuse follows!
In the latter part of the trial, it was suggested with more frequency and emphasis that mala fides was the explanation for what was described, in not so many words, as Iyove's demonstration of ingratitude, ungratefulness, and inconsiderate attitude. 
Unconscionable personal motives such as jealousy, desire to defame and denigrate were possible explanations. The cumulative effect of all the possible explanatons, as suggested by the defence, was a huge conspiracy on the part of the State witnesses to have the accused eventually deported from the country.
Then, by what can only be described as a "last ditch" attempt, the defence offered in its final submissions that the accused denied the charges, but if the charges were in fact true, then the offence was committed on those various numerous occasions with the consent and acquiescence of the then child victim. I will deal with this later in more detail, but for now it suffices to state that this is analogous to an incredible suggestion (by way of a defence) in a rape case that the accused did not rape the prosecutrix, but if the State established that he did, then he did so with the victim's consent. This type of arrant nonsense was commented upon by Jackson CJ in the West Australian case of Holman v R [1970] WAR 2 at 7 in the following way:
"When intercourse is denied, it is virtually impossible, in a criminal trial, for an accused person by his evidence to set up consent as a defence, and it is difficult even for his counsel to venture too far upon this topic without it being thought that he is in fact abandoning his client's own denial of intercourse."
Now, at this juncture it is best I provide a brief outline of the law we are concerned with here in this trial, together with certain aspects of the points of law raised by counsel during the course of the trial.
At the outset, it must be stated that in the common law world, particularly the jurisdictions following the Anglo - American traditions of adversarial system of trial, it is for the parties to litigation themselves to conduct their respective cases, not for the courts to conduct the proceedings for them. The courts are intended to perform the task of independent, impartial arbiters of law and facts. This, thus, becomes of crucial relevance in cross - examination of opposing witnesses and objecting to any aspect of their respective evidence.
Relating this to the case here, the defence in its final written submissions adverted to a host of matters or issues not dealt with in cross - examination of State witnesses; that is, not put or suggested to them. Similarly, the defence in its written submissions adverted to and questioned the relevance and veracity of documents tendered into evidence by consent of the defence itself, and duly admitted as legal evidence.
It is elementary and ought to be obvious to any serious practitioner of the law that failure to cross - examine a witness who has been called by and given relevant evidence for the opposing side is held technically to amount to an acceptance of the witness's evidence in chief. It is, therefore, not open to a party to impugn (or attempt to) in a closing speech, or otherwise, the unchallenged evidence of a witness called by his opponent, or even seek to explain to the court the reason for that failure to cross - examine at the relevant time. There is abundant case law on this point, but one that illustrates succinctly is the English case of R v Bircham [1972] Crim LR 430, where counsel for the defendant was not permitted to suggest to the jury that the co - defendant and a witness for the prosecution were the perpetrators of the offence charged, where that allegation had not been put to either in cross - exmination.
This is an important rule of practice, commonly known as the rule in Browne v Dunn (1893) 6 R 67 (HL). Hunt J, in the case of Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 recently formulated the rule as follows:
"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross - examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross - examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."
In the PNG case of The State v Minjipa [1977] PNGLR 293, Prentice DCJ, in adopting the rule for the case, said that it was desirable that the State witnesses should have been cross - examined to put the defence case.
Accordingly, it is counsel's duty in every case (a) to challenge every part of a witness's evidence which runs contrary to his own instructions, (b) to put to the witness, in terms, any allegations against him which must be made in the proper conduct of the defence, and (c) to put to the witness counsel's own case, in so far as the witness is apparently able to assist with relevant matters, or would be so able, given the truth of counsel's case.
It so happened at the trial that the defence did not put to the State witnesses, more particularly Daniel Stanton, Iyove Apo and Jason Pake, certain matters in their cross - examination. These matters the defence found no difficulty at all in discussing in the written submissions. For example, these State witnesses were not cross - examined on their motives, if any, for making the allegations of sexual abuse and coming to court and giving evidence. Moreover, Iyove Apo was not cross - examined on the defence suggestion that he consented to and acquiesced in Dr Merriam's sodomising of him.
The second consequence of the defence failure to cross - examine State witnesses on certain matters is a tactical one, but no less important for that. Where part of a party's case has not been put to witnesses called for the opposing side, who might reasonably have been expected to be able to deal with it, that party himself will probably be asked in cross - examination why he is giving evidence about matters which were never put in cross - examination on his behalf. The implication of this question is that the party is fabricating evidence in the witness box, because if he had ever mentioned the matters in questions to his legal advisers, then they would have been put on his behalf at the proper time. There is, therefore, some risk that the defendant's credit as a witness may be affected by failure to cross - examine fully on his behalf.
Next important point of law to make mention of here is that in criminal trials the burden of proof lies on the State. It is trite law that it is for the State, the accuser, to prove the guilt of the accused, and not for him to prove his innocence. This is usually expressed in another way by the phrase: the presumption of innocence. Such a protective presumption of law is guaranteed to all accused persons. And allied with this is the equally important principle of the criminal justice system that the guilt of the accused must be proved beyond reasonable doubt. A very high and onerous burden indeed! Thus, if at the end of all evidence the Court has any doubt, any lingering doubt at all, about the accused's guilt, the accused must have the benefit of that doubt, and be discharged of the charge(s).
A considerable portion of defence counsel's time with all the witnesses, both State and defence, was preoccupied with the question of reporting or complaining about the alleged acts of sodomy. This was intended no doubt to suggest that reports or complaints were not made as the incidents in question took place. The objective was to cast doubt on the victim's credibility.
Another intended implication was that which emerged from the written submissions of the defence: no reports, no complaints; therefore, you acquiesced and consented. In rape cases, evidence of what is termed proximate complaint is evidence that the woman had not consented. But it does not necessarily follow that the lack or absence of complaint must be evidence of consent. The two English cases of R v Lillyman [1896] 2 QB 167 at 170 and Sparks v R [1964] AC 964 at 979 establish the principle that evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped. That is to say, it is admitted as matter going to her credit. 
Coleridge J, in his summing up to the jury in R v Day 173 ER 1026 at 1027, explained that, "There is difference between consent and submission; every consent involves a submission; but it by no means follows, that a mere submission involves consent. It would be too much to say, that an adult submitting quietly to an outrage of this description, was not consenting; on the other hand, the mere submission of a child when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law."
The requirement for reporting or complaining, usually expressed as recent complaint, is normally associated with sexual offences such as rape. The basic reason for the emergence of this requirement may lie in some early recognition of the undoubted suspicion - in the intensely and traditionally chauvinistic cultures of yesteryear - which fell at common law on a woman who failed to complain within a short time of an outrage perpetrated upon her. And this was necessitated, in part, by the fact that, by their very nature, offences of this nature would be very unlikely to produce direct eye - witness evidence.
The American jurist Oliver Wendell Holmes was certainly corrrect in his unkind stigmatisation of the recent complaint doctrine as:
"a perverted survival of the ancient requirement that woman should make hue and cry as a preliminary to an appeal of rape."
Whatever its origin, the phenomena survives into modern law. So the requirement in sexual offences is only that the complaint be made voluntarily and at the first opportunity reasonably afforded.
The complaint is admissible into evidence as an exception to the hearsay rule only for either of two purposes:
1.       to confirm evidence of the complaint relating to the offence, and/or 
2.       to rebut or disprove consent on the part of the complainant, if that is an issue in the case.
Whether the complaint was "recent" or not is a question of fact and degree in every case. Certainly, it was not necessary that it was made within the comparatively short period required for admissibility under the res gestae (contemporaneity) rule.
On the other hand, complaint must have been made at the first opportunity which reasonably presented itself. Thus, it is not a question of the length of time per se. Applying this to the case here - where we are not concerned with the rape of an adult female - the rule becomes more insistent and crucial, as a safeguard against concocted self- serving complaints. Also, it is some guarantee that the complaint has at least some value as evidence of the matters in respect of which it is admissible. For the same reason, it is a requirement that the complaint must have been voluntary and spontaneous.
And whilst we are concerned with an offence under s 210 of the Criminal Code, which does not distinguish between adults and minors, the nature of the allegations is such that this is a typical child abuse case - in the same mould as incest, or buggery by the male parent, male relatives, or adult friends of the family, or by other adults in positions of trust, eg, priests or teachers. It is in this context that the requirement of complaint or "recent complaint" must be appreciated.
The victim, Iyove Apo, gave reasons for not telling anybody about what was happening to him, for not complaining and reporting the matter between 1980 and 1983. He was 8 or 9 years old, shy, frightened, afraid he might not be believed and would probably be laughed at. There are, these days, documented accounts of why children, victims of abuse, sexual or otherwise, at home or in institutions, find difficulty or reluctance in reliving their horrible and highly traumatic experiences. And documented studies reveal a host of inhibiting factors in reporting offences of this nature. These can be conveniently summarised as follows:
.           Victims, and more particularly children, are unaware (cannot possibly know) that an offence has been committed. They are at an age when they may be unable to know and/or appreciate the distinction between right and wrong.
.           Parties concerned are acting illegally but with consent, as in the cases of incest and certain sexual offences between youths and girls (a situation envisaged or anticipated by s 210(1)(c)).
.           Even if the victim is unwilling, he may not wish to involve the offender in the consequences of prosecution. This may be motivated by anti - police attitudes in the community.
.           A community may not be fully aware of the seriousness of the offence, and its detrimental effects.
.           In homosexual offences, some males may refrain from reporting these cases, eg, of homosexual importuning, in case they are themselves suspected of making advances.
.           Similarly, in cases where young children have been molested, parents may wish to spare the child the stress of possible questioning and possible court appearance.
.           The victim may well be intimidated by threats of blackmail, physical or temporal harm, or influenced by promise of advantage.
Sexual offences against children and young persons vary considerably in their form and in their intensity. For instance, incest can be regarded as one kind of sexual offence against a child. Similarly, buggery or attempted buggery are often committed against children. But s 210 does not discriminate, does not distinguish this act from those committed against children. Those who commit sexual offences against children (almost always males) are usually referred to in other jurisdictions as "paedophiles".
It should, therefore, come as no surprise that a large number of sexual offences against children are committed by those who are in positions of tutelage and/or trust.
There are documented studies by criminologists, in the US and the UK especially, that much rape has, until quite recently, been under - reported. A woman may be understandably reluctant to go through the ordeal of a searching medical examination and a public explanation of the circumstances of the alleged assault. Far less attention has been given to cases of male rape. These are covered in the criminal statutes, as our s 210, as acts or attempted acts of buggery. 
Moreover, the reluctance to talk about it or to report it is, if anything, greater for children than it is for adult women. Publicity accompanying trials has been so humiliating in the perception of some victims that complaints may not be made at all, or, if made, not proceeded with.
I now return to the issue of consent, which I adverted to earlier only briefly. Consent is no defence under s 210.
Defence also adverted to the fact that the State had not produced any witnesses to give direct evidence corroborative of the victim's evidence. Cross on Evidence (4th Aust edn) para 15175 states:
"... corroborative evidence may be circumstantial as well as direct. Where there is before the Court evidence of a chain of circumstances which in combination implicate the accused, this may amount to corroboration notwithstanding that any one link in the chain would itself in isolation not satisfy the Baskerville test."
It has to be stated that sexual offences, by their very nature, are almost always committed in "secret", in the absence of third parties. This is contrasted with street and traffic offences, which can have any number of eye - witnesses. Thus, reporting or detection of sexual offences, especially of incest and child sexual abuse cases, often occur long after the incidents. It is a truism that the younger the victim the less chance there is of the perpetrator being caught.
So, invariably there are no direct independent witnesses in these offences. But corroborative circumstantial evidence, as explained by Cross (supra), will suffice. In the two Queensland cases of R v Witham [1962] Qd R 49 and R v Walczuk [1965] QWN 63 n50 and the High Court of Australia case of Kelleher v R [1974] 48 ALJR 502 (Barwick CJ at 505), the less rigid rule of practice ensures that in all cases of sexual offences the Court should warn the jury that "it is not safe to convict on the uncorroborated testimony of the complainant but that they may do so if satisfied of its truth". Barwick said that a jury "may act on the words of the woman alone but should exercise considerable caution before doing so, because of the ease with which charge is made and the difficulty which may attend its rebuttal".
Under the English common law, there has to be warning of the jury in all cases of sexual offences, even where there is ample evidence corroborating that of the complainant (Cross, supra). In PNG, there have been lines of decided cases on the subject. 
In McCallum v Buibui [1975] PNGLR 439, CJ Frost acknowledged the rule of practice that in a sexual charge the tribunal of fact (the Judge without a jury) should warn itself or take into account the danger or risk of acting upon the uncorroborated evidence of the woman as to the elements of the charge. Similarly, in State v Guma [1976] PNGLR 10, the Court held that the requirement for the Judge to warn himself was a rule of practice falling not far short of a rule of law. See also the cases of State v ToVue [1981] PNGLR 8 (per Kearney DCJ) and the pre - Independence case of R v Noboi - Bosai [1971 - 72] PNGLR 271. The PNG Court should make it clear that it has the risk in question in mind, even when it is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond reasonable doubt. The rule is a sound one on the basis that justice must be seen to be done.
Finally on this issue, s 210 makes provisions for the criminalisation of unnatural offences constituted by the carnal knowledge of a human being against the order of nature and the carnal knowledge of an animal. These come in Part IV of the Criminal Code, dealing with "Acts Injurious to the Public in General", and in Division 2 of that part, specifically concerned with "Offences against Sexual Morality", ss 209 - 229. It is of significance to note that only four sections there specifically require corroborative evidence: s 213(4) for defilement of girls under age 12, s 216(3) for defilement of girls under age 16 and of idiots, s 218(2) for procuring a girl or woman, and s 219(2) for procuring a girl or woman by drugs, etc. The usual phraseology is: 
"A person cannot be convicted of an offence against this section on the uncorroborated testimony of one witness." 
Section 210 is one of the provisions in this division that does not have such a requirement for corroboration.
COMMENTS ON THE EVIDENCE
In the overall assessment of the evidence called in this trial, I have been impressed with the State witnesses. Their evidence generally has been direct to the questions asked, unwavering, and serious. They exhibited no over - anxiety about the questions or over - enthusiasm to embellish or emphasise by repetitiveness. I detected no tendency for deliberate meandering in their responses. Thus, I found their evidence to be directly to the point(s) about matters under consideration. If there were any meanderings in their evidence, these were directly attributable to questions from counsel, the irrelevant questions going unchallenged or unobjected to by the opposing counsel.
Generally, I found State witnesses did not display any propensity to elaborate or overdo anything. They stood their ground under cross - examination, but more importantly, they were not detracted from the evidence that really mattered. They, especially Iyove Apo, Jason Pake, Benny Okie, and Rana Kanakabala, were giving evidence against someone, a foreigner and a white man, who had come into their midst, into their "simple" lives/existence and had had a great influence on them one way or another for nigh on 30 years. They were giving evidence against this person who had wielded so much power and authority over them and their people for so long.
And the other three State witnesses, Daniel Stanton, Inspector Lincoln Gerari, and Thomas Jonduo, I found to be credible witnesses. If the truth had to be told about this matter, it was told by Iyove Apo and Jason Pake, and well corroborated by the circumstantial evidence offered by the other State witnesses as well by the defence witnesses, principally the accused himself. I, therefore give credence to the story unfolded here through the State witnesses. The story was not far - fetched, not incredible. It was a story that was not impossible to corroborate, though corroboration was not necessary by law.
As regards the defence witnesses, my general impression of their evidence was not favourable at all. I was not overly impressed with their demeanour and the general way they all carried themselves when responding to questions. They were "shifty", evasive, and seemed to me to be making things up as they went along in their evidence. This is particularly so of the accused himself and the witness Mackenan Kege. The latter's oral evidence was often interspersed with wide grins. Were they grimaces or grins? He did not appear to be in pain or under any physical stress. And then I did not see anything funny in what he was saying to be grinning. In fact, I saw nothing funny in or about the trial of the case.
What was so funny about an old man of 69 years, white, missionary, and charged with the heinous crime of sodomy - sodomy on a child victim under his control and tutelage. The witness smiled a lot and unnecessarily. Was this because he was telling a pack of lies? It was, in any case, inappropriate considering the gravity of the situation. Mr Kege gave me the impression that he possessed a very vivid and fertile imagination. Then there were his hesitant and calculating manner of responding to the questions. In the end, it would seem he concocted a story to support Dr Merriam.
The accused, apart from stoutly and "positively" denying the allegations, contradicted himself on so much of the crucial aspects of the case. He displayed a propensity to elaborate and embellish. And he was found by me to be definitely economical with the truth. He remembered only what he wanted to and when he thought it suited his cause, and brought on what can only be described as "convenient amnesia" when it did not. He described certain things perfectly and "positively", but had no recall on others, ie, events occurring around about the same period of time. He thereby demonstrated acute selective memory recall. Some incidents seemed to be recalled with absolute clarity whilst there appeared haziness in others.
It was evident that Dr Merriam had organised and gone on many tours to the US (six in all) chaperoning a group of people from Okapa. Yet he was unable to recall the types of accommodation they used and their names, and the sleeping arrangements (who slept where and with whom). The latest tour was in 1991. Asked about the first night on that tour, the accused said that the five people on the tour spent the night on Avalon on Catalina Island in "one hotel room, not two rooms". Three questions later he said they were in "two rooms, rather jammed together". Then, two questions later, "We were all in one room...". This was all during his examination in chief.
An example of the accused's evasiveness appears during his cross - examination, illustrated by the following:
Q.       Who established Highlands Christian Mission?
A.       Mission was registered in 1964.
Q.       Who was the founder?
A.       I am the founder.
And sometime later, the following:
Q.       You also told the Court about reading the mother's statement to her at the Highlands House. You agree you asked her to get there, you invited her. 
A.       Yes
Q.       By this, you agree, you'd know she was a State witness.
A.       Police record was there. I read it to her.
And the accused said a bit later that Jason Pake had never reported him to the police, and added: "After a week later, end of last year, he came into our office and told my wife and me, and admitted to me he'd been pressurised." Four questions later, the question of speaking to State witnesses was raised (in relation to Jason Pake) and he said: "I got it from a teacher, he (Jason Pake) didn't want to come, and he ran away to get away from people trying to get him."
All in all, Dr Merriam came across as a man used to wielding enormous power and influence in the small isolated community of Yagusa valley. He was a man used to being obeyed, used to having attention danced upon him. He is used to getting his own way.
In the end, I was convinced that Dr Merriam would go to any lengths to get his own way. This was amply demonstrated by the episode of attempting to subvert the course of justice by threatening and interfering with State witnesses. He gave me the impression of being a person who would not be averse to employing any manner of stand - over tactics and manipulative methods.
The accused knew perfectly well what he was doing when he confronted Iyove Apo and two other men outside this Court during the lunch hour on 9 March. He knew perfectly well what he was doing when he set in motion a campaign of harassment and intimidation of the Stantons, to the extent of procuring the assistance of his lawyers to threaten them, illegally, with deportation. He knew perfectly well what he was doing when he talked to Mala Pake, mother of Jason, in an endeavour to influence her to retract her story (the statement to the police). All these were directed towards sabotaging the successful prosecution of this case, by the blatant and overt use of his powers, his cultural background and seniority, and his status in the mission hierarchy and the community at Yagusa.
The defence witness Yasiba Kavoe said nothing in his evidence that could seriously be taken as supporting the denial of the accused. The main theme of his evidence was that if what was said about and against Dr Merriam were true, then he should have been sexually molested too when he joined the Merriam household in 1978 as 12 or 13 year old. But it will be noted from his evidence that this witness slept in the open space with two adults while Iyove Apo slept in a room of his own upstairs. Moreover, this witness was living there part-time, "50 - 50", in his village and at HCM.
In the end result, I conclude that the evidence of the victim, Iyove Apo, which withstood challenge throughout the trial, and the overwhelming circumstantial evidence from other State witnesses, together with the evidence of the defence witnesses basically corroborating the State evidence, led to the one incontrovertible answer - that is that sodomy took place as alleged by the State. The opportunities were there for those acts to have taken place. At the Highlands House, the accused admitted to visiting Iyove's room to say good - night and say prayers together. He also admitted to having Iyove come to his room and sleep there with him.
There was unchallenged evidence that the accused and his wife for nigh on 30 years did not share the same bedroom and same bed. This state of affairs at the Highlands House was re - created in the US, when the Stantons visited them in New Jersey. The Merriams used the only two bedrooms upstairs, leaving the Stantons to use the couch downstairs for sleeping during the entire 10-day period of their visit. It would appear from all these, in the absence of evidence to the contrary, that the Merriam's marriage had not been consummated.
It is the judgment of this Court that the State has proven beyond reasonable doubt the guilt of the accused on the two counts of sodomy alleged in the indictment. That is to say, I find Dr Stuart Hamilton Merriam guilty of having carnal knowledge of Iyove Apo against the order of nature on those occasions between 1980 and 1983 at Yagusa and on the Goroka Show week - end in 1982. The evidence of the offence taking place in Unggai cannot be acted upon because the accused had not been formally charged and arraigned in respect of it.
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Kemaken Lawyers.