SC2623

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 19 OF 2023

ROBERT AGEN
Appellant

AND
THE STATE
Respondent

Waigani: Salika CJ, Berrigan and Dowa JJ
2024: 29th February and 2nd September

APPEAL – APPEAL AGAINST CONVICTION – S 347, Criminal Code – Rape – S 335, Common Assault – Appeal upheld. 

APPEAL – APPEAL AGAINST CONVICTION – S 335, Criminal Code Common Assault – Defence of provocation excluded beyond reasonable doubt - Appeal dismissed. 

Cases Cited:

Papua New Guinean Cases
Wartoto v State (2015) SC1411
State v Songke Mai SCR NO. 5 of [1988] PNGLR 56
The State v The Principal Magistrate District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388 
Paru v State (2017) SC1632
Manning v Romongi (2022) SC2197 
Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899
State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807 
State v Wohuinangu (1991) N966
In re Namah (2018) N7194
Thompson v Kalaut (2011) N4265
Lati v The State (2015) SC1413 
John Beng v The State [1977] PNGLR 115
Didei v The State [1990] PNGLR 458
State v Paulo [1994] PNGLR 335
The State v Anton Kumak (1990) N835
State v Merriam [1994] PNGLR 104
Birch v The State [1979] PNGLR 75
The State v Bikhet Nguares Paulo [1994] PNGLR 335 
John Jaminan v. The State (No 2) [1983] PNGLR 318
Kitawal v The State (2007) SC927
Liberato v The Queen (1985) 159 CLR 507
Karo Gamoga v The State [1981] PNGLR 443
Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942
Michael Tenarum Balbal v. The State (2007) SC860
Waranaka v Dusava [2009] PGSC 11 SC980
RD Tuna Canners Ltd v Sengi (2022) SC2232
Garitau Bonu and Rosana Bonu v The State (1997) SC528
Balbal v State SC860 (2003) 
Maraga v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173 
Denden Tom &Ors v The State (2008) SC967
Devlyn David v The State (2006) SC881
Kapahi v State (2010) SC1023 
The State v Joseph Maino [1977] PNGLR 216
The State v John Yambra Pai (1986) N535 
State v Paru (2021) N9108 

Overseas Cases

Williams v Spautz [1992] HCA 34
Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
R v Crawley [2014] EWCA Crim 1028

References Cited

Sections 6, 229H, 267, 335, 347, 347A, 347B, 525, 526, 574 of the Criminal Code
Sections 37(1), 37(2), 42(2), 43, 59(2), 155(4), 197(2) of the Constitution 
Section 33(2) of the Police Act
Sections 28, 41, 49, 94, 94A of the District Courts Act, 1963
Section 21 of the Supreme Court Act
Section 4 of the Public Prosecutor (Office and Functions) Act, 1980

Counsel
D Dotaona, for the Appellant 
M Tamate, for the Respondent State

DECISION ON APPEAL

2nd September 2024

1.	BY THE COURT: The appellant was convicted following trial of three charges arising out of two separate incidents involving the same complainant, a woman, AHJ, namely, the rape and common assault of AHJ on 30 April 2018 at Owers’ Corner, Central Province, contrary to ss 347 and 335 of the Criminal Code, respectively, and the common assault of AHJ on 15 September 2018 at Waigani, NCD, contrary to s 335 of the Criminal Code: State v Agen (No 7) (2022) N10294. The appellant was given an effective head sentence of 11 years of imprisonment in hard labour, five and half years of which was suspended. He appeals against conviction on all three counts.

2.	The notice of appeal contains 47 grounds which are prolix and repetitive. There are two main areas of contention. The first concerns alleged irregularities at the charging or committal stage which the appellant says meant that he was never properly before the District Court. The second challenges the convictions on various grounds.

CHARGING AT THE DISTRICT COURT

3.	The appellant made an application to quash the verdict on each count following his conviction and prior to sentence at the National Court. He contends that the trial judge erred in refusing to hear and grant the application on the bases that: 

(a)	he was never arrested and charged by police for the Owers’ Corner rape and grievous bodily harm charges, and he was never re-arrested and charged by police for the Waigani grievous bodily harm charge after the common assault charge initially laid in relation to that incident was withdrawn by the police prosecutor at the committal court, and he was therefore never brought before the committal court on those charges, in contravention of his rights under ss 37(1), 37(2), 42(2) and 59(2) of the Constitution; 
(b)	it is the function of the police and not the Public Prosecutor to lay criminal charges as occurred here; 
(c)	the investigating officer had been convicted of a criminal offence involving dishonesty and therefore stood dismissed from the Police Force under s 33(2) of the Police Act and lacked legal standing to bring criminal proceedings; and
(d)	consequently, most if not all documents contained in the police hand up brief were false in contravention of s 94A of the District Courts Act, 1963. 

4.	Alternatively, the appellant contends that the trial judge erred in refusing to refer questions arising from those matters to the Supreme Court for consideration. 

5.	The State submits that the arguments were considered by the trial judge and makes no submissions as to their merits.  

Background

6.	The appellant was interviewed and charged by investigating officer, Joshua Kraip, on 20 September 2018 in relation to one count of alleged common assault contrary to s 335 of the Criminal Code for an alleged incident at Waigani on 15 September 2018. An information was laid before the District Court in relation to that matter on 21 September 2018 by the said investigating officer.  

7.	On 17 December 2018 the police prosecutor at the District Court wrote to the Public Prosecutor seeking his election for the matter to proceed summarily. On 24 January 2019 the Public Prosecutor responded declining the request. On 7 February 2019 the Public Prosecutor sent a further letter again declining the request and strongly recommending that the appellant be charged with two counts of grievous bodily harm and one count of rape. 

8.	At some stage thereafter, the date is unclear, informations were laid by Joshua Kraip at the District Court charging the appellant with one count of grievous bodily harm in relation to the alleged Waigani incident, together with one count of rape and one count of grievous bodily harm of the same complainant alleged to have occurred at Owers’ Corner on 30 April 2018. 

9.	On 1 April 2019 a brief of evidence was served on the appellant at the District Court containing material in relation to both incidents. On 7 May 2019 submissions on the sufficiency of evidence in relation to the Owers’ Corner rape and grievous bodily harm and the Waigani grievous bodily harm charges were filed by the appellant. The prosecution’s submissions were filed on 7 June 2019. On 14 June 2019 police withdrew the common assault charge for the Waigani incident and confirmed that they would be proceeding with the other three charges. Submissions on the sufficiency of evidence in support of those charges were heard on 16 August 2019.  

10.	On 23 August 2019 the appellant was given the opportunity to make a statement under s 96 of the District Courts Act in response to the charges. He exercised his right to say nothing. The appellant was committed to stand trial at the National Court on all three charges relating to events at both Owers’ Corner and Waigani.  

Consideration

11.	There was no error on the part of the trial judge in refusing to hear the appellant’s application to quash the verdict. 

12.	The appellant relied on s 155(4), Constitution to bring the motion, in effect asking the National Court to use its inherent power to make an order to do “justice in the circumstances of” the case. As made clear on numerous occasions by the Supreme Court, “justice” means “justice according to law”: Electoral Commission v. Pila Niningi (2003) SC710; Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v. Niganu (2020) SC1919; Telikom PNG Ltd v Kopalye (2021) SC2141; State v Yomba (2022) SC2274, amongst others.

13.	The appellant did not identify the legal basis upon which the trial judge could revisit her decision on verdict either at the time the application was made in the National Court nor during submissions before us on appeal.  Section 155(4) of itself provides no such basis whether by reference to s 37(1) (protection of the law) or any of the provisions under s 37(4)(a) to (f) (right to fair trial). The application was a clear abuse of process in any event. 

14.	Objections about the commencement of proceedings in the District Court must be raised at the earliest opportunity at the District Court. Attempts to raise such matters before the National Court having failed to do so may well constitute an abuse of process: see Wartoto v State (2015) SC1411 at [45] to [51]. If such objections are to be maintained in the National Court they must also be raised there at an early stage. 

15.	In this case the objections were raised by the appellant and dismissed by the trial judge at various stages, including prior to the presentation of the indictment, upon presentation of the indictment, at the close of the State case and again on verdict after considering evidence led in that regard during the trial.  The appellant was entitled to maintain his position for the purposes of an appeal but it was a clear abuse of process to raise the objections again. 

16.	For similar reasons it was an abuse of process for the appellant to seek to have the same or similar issues referred to the Supreme Court pursuant to 21, Supreme Court Act.  

17.	We turn now to the substantive arguments raised.  

18.	Firstly, it is necessary to distinguish between arrest and the commencement of criminal proceedings. A person is arrested when they are deprived of their liberty: State v Songke Mai SCR NO. 5 of [1988] PNGLR 56. But there is no need for a police officer to arrest a person for the purpose of commencing proceedings against them in the District Court.  

19.	A person may be arrested without warrant pursuant to s 3(c), Arrest Act.  Upon being arrested the person must be administered their rights under s 42(2) of the Constitution and brought without delay before a court in accordance with s43 of the Constitution, at which time proceedings are commenced by the laying of an information under s 28 of the District Courts Act.  

20.	It is also possible, however, for proceedings to be commenced by the laying of an information at the District Court without any arrest, following which the person is brought before the Court by way of summons (or warrant) issued by the magistrate: see ss 28, 41 and 49, District Courts Act. 

21.	In short, there is no obligation on police to arrest a person, that is deprive a person of their liberty, for the purpose of commencing proceedings against them in the District Court. 

22.	As for the powers of the Public Prosecutor, he declined to have the Waigani assault charged under s 335, Criminal Code proceed summarily. That was his decision to make. The Public Prosecutor shall control and exercise the prosecution function of the State: s 4 of the Public Prosecutor (Office and Functions) Act, 1980. Pursuant to that power it is the sole prerogative of the Public Prosecutor to elect, that is to decide, whether an indictable matter may proceed summarily or by indictment: The State v The Principal Magistrate District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43. 

23.	The Public Prosecutor, having reviewed the evidence, also recommended that the Waigani assault charge be upgraded to a charge of grievous bodily harm. Section 197(2) of the Constitution makes clear that members of the Police Force, when laying, prosecuting or withdrawing charges are not subject to direction or control by any person outside the Force: In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388 at [101]. There was nothing inappropriate, however, about the Public Prosecutor recommending that police proceed with the more serious charge and he would have been at liberty to proceed with the more serious charge at the National Court following the committal proceedings in any event: see s 525 and 526 of the Criminal Code.

24.	There was also nothing inappropriate about the Public Prosecutor recommending that the appellant be further charged for the alleged Owers’ Corner rape and grievous bodily harm offences on the material available to him. That was his advice. 

25.	Moreover, it is not uncommon in this jurisdiction, and others like it, for police to seek advice from the prosecution service from the earliest stages of investigation, particularly in the case of complex matters. There is much merit in such an approach for obvious reasons.  

26.	Of course, the decision to lay the charges remained with the investigating officer concerned. It is not surprising that he did so upon advice from the Public Prosecutor but ultimately it was his decision to make.

27.	In this regard, whilst the submission was not expressly articulated in these terms, it is not the case that either s 42(2) or s 59 of the Constitution require that a person be given the opportunity to participate in a record of interview prior to being charged. 

28.	Section 42(2), Constitution requires that a person who is arrested is informed of the reasons for his arrest and permitted to communicate with a friend and give instructions to a lawyer. A failure to administer these rights may result in subsequent admissions being excluded from evidence at trial in the exercise of a judge’s discretion (R v Ginitu Ileandi [1967-68] PNGLR 496; The State v Kuya [1983] PNGLR 263; The State v Kwambol Embogol (1977) N91; R v Suk Ula [1975] PNGLR 123; Paru v State (2017) SC1632; Constitutional Reference No. 1 of 1977  [1977] PNGLR 295; amongst others, but that is not the issue raised here and, as above, it is not necessary that a person be arrested before proceedings are commenced against them in the District Court.

29.	Section 59, Constitution requires that a person is afforded natural justice during administrative or judicial proceedings. 

30.	The decision to lay a charge rests with the police officer concerned. In general terms, a police officer must believe on reasonable grounds that a person has committed an offence before charging them. That means that the officer personally holds the belief and that there are reasonable grounds for the belief.  It follows that in forming the belief a police officer will usually invite a person to participate in an interview and take into account any explanation that the person may give, noting of course, that the person has the right to remain silent.  But there is no requirement in law that a person be given the opportunity to participate in an interview before they are charged. In some cases it will serve no purpose, for instance, where a person is caught in the act of committing an offence by the officer concerned. 

31.	In this case, the appellant had already participated in an interview, been charged and was before the Court in relation to the alleged Waigani incident. It was not appropriate for police to question him about it again in those circumstances.  

32.	As for the Owers’ Corner charges, it does appear that the investigating officer relied heavily on the advice of the Public Prosecutor in forming the belief that the appellant had committed the offences. It cannot be said, however, that he did not have reasonable grounds for doing so on the material before him.  

33.	It is unclear when the Waigani grievous bodily harm and the Owers’ Corner rape and grievous bodily harm informations were laid.  The date on their face of 21 September 2018 is clearly wrong on the evidence of all concerned. Nevertheless, the appellant was made aware that the charges were going to be laid and then that they were laid. The charges were laid in front of the same magistrate dealing with the Waigani common assault charge before it was withdrawn. The offences contained in the informations are known to the written law for the purpose of s 37(2), Constitution. The appellant was provided with the brief of evidence in support of all three charges within a reasonable time.  Neither the allegations nor the evidence in support of them are complex or voluminous. The hand up brief contained a total of five statements, including the statements of the investigating officer who conducted the police interview on 20 September 2018 regarding the Waigani assault and his corroborator. The appellant had an opportunity to, and did, make submissions as to the sufficiency of evidence in support of each of the charges. He was invited to make a s 96 statement in respect of each of the charges and exercised his right to remain silent.  

34.	The appellant has failed to demonstrate any prejudice either at the committal stage or in his defence at trial in those circumstances. His substantive rights to a fair trial remained protected at all times.  

35.	Finally, the fact that the charges were laid and the hand up brief were prepared by a police officer who had been convicted of an offence did not by that fact render the charges defective nor the evidence in support of them “null and void”.   

36.	Section 33 of the Police Act 1998 provides that a “member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force”.  The appellant relies on the decision of Manning v Romongi (2022) SC2197 in which the Supreme Court adopted the view of Injia CJ in Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899 that “a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction.” 

37.	The investigating officer, Joshua Kraip, was convicted by the National Court of one count of the unlawful use of a motor vehicle contrary to s 383(2), Criminal Code on 5 May 2017.  His sentence of 2 years, 6 months was wholly suspended on conditions. He should have been removed from the Police Force immediately. No action was taken to give effect to s 33(2), Police Act and he carried on as an investigator, even after the Commissioner’s memo of September 2021 confirming that he stood dismissed effective the date of his conviction. 

38.	Whatever the effect for Mr Kraip’s membership of the Force, however, the fact of his conviction did not render the criminal proceedings defective. Mr Kraip was authorised by the complainant to lay the informations pursuant to s 28 of the District Courts Act.  

39.	For obvious reasons the fact of Mr Kraip’s conviction did not render the statements contained in the depositions from various witnesses false in contravention of ss 94(1) or 94A of the District Courts Act. Those statements were statements of purported fact within the knowledge of witnesses who certified them to be true and were matters properly to be tested at trial, regardless of whether or not the statements were taken by Mr Kraip.  For similar reasons, Mr Kraip’s own statement and his evidence at trial of what he saw, heard or did, did not by reason of his conviction become “false, null or void” because he was no longer a member of the Police Force at the time of the investigation.   

40.	The real question is whether the proceedings should have been permanently stayed in the circumstances.  

41.	The permanent stay of a criminal proceedings is an extreme remedy only to be applied in exceptional circumstances. It is of fundamental importance that the courts should exercise, rather than refrain from exercising, their jurisdiction to determine whether a person charged with a criminal offence is guilty.  A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807 at [22] considering Williams v Spautz [1992] HCA 34; Jago v District Court of NSW [1989] HCA 46; State v Wohuinangu (1991) N966; In re Namah (2018) N7194; R v Crawley [2014] EWCA Crim 1028; Thompson v Kalaut (2011) N4265.

42.	The appellant failed to demonstrate that the matter should have been stayed for being an abuse of process under either of the two broad categories in which such an extreme remedy might be applied, that is he failed to demonstrate that he was no longer able to receive a fair hearing or that a stay was necessary to protect the integrity of the criminal justice system: see State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807 at [20] to [24].

43.	On the first category, the fact of Mr Kraip’s conviction had no bearing on the appellant’s ability to obtain a fair trial. The appellant failed to demonstrate that his substantive rights were affected in any way as a result of it.  

44.	On the second, there is no doubt that Mr Kraip should have been removed from duties following his conviction. It is important that the community have confidence in the Police Force and it follows that it should not allow officers to continue to act in such circumstances. There is no evidence, however, that suggests that he brought the proceedings in bad faith or for any improper purpose and in the circumstances it is our view that the fact of his conviction of itself did not call for the trial to be stopped on the basis that it would undermine public confidence or bring the criminal justice system into disrepute in this case.  The Constabulary must, however, avoid similar situations in the future. 

45.	Accordingly, the grounds challenging the charges before the National Court are dismissed. 

APPEAL AGAINST CONVICTION

46.	To succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

47.	In summary, the appellant contends that the trial judge erred in reversing the burden of proof, refusing to visit the alleged crime scene, making factual findings that were inconsistent with the evidence, failing to take into account inconsistencies in the complainant’s evidence, failing to consider the delay in the reporting of the Owers’ Corner rape and assault, and failing to take into account the absence of a medical report in support of those alleged offences. For the most part the grounds concern the Owers’ Corner rape and assault charges. We will return to the Waigani assault below.   

State Case

48.	The complainant, a journalist, gave evidence that on 30 April 2018 the appellant came to her office, demanding to know her whereabouts the night before. Upon his insistence she got into his vehicle. He picked up two men armed with bush knives from Wardstrip Primary School who later sat on either side of the complainant in the back seat of the vehicle. The appellant drove at speed up to Owers’ Corner whilst repeatedly punching her as she sat in the rear passenger seat. Along the way he stopped the vehicle on a dirt road, accessed her phone, threw her to the ground, continuously assaulted her and threw her back in the vehicle before driving up to Owers’ Corner, where he repeatedly punched her face, stomach and body for several minutes, stopping only when three to four people walked past. He told the two men to keep the bush knives out of sight and the complainant to stop crying and not to draw attention to herself. He got out of the vehicle, continued to assault her and told her that he was going to have her killed. The two men pulled her out of the vehicle, took her to the cliff and showed her where they would dump her body. She pleaded with them and they agreed they would allow her to live. 

49.	The appellant came over and told the men to leave and they walked away out of her line of sight. She pleaded with him. He told her she would forever live as one of his wives and a sex object. He demanded sex. She refused. He turned her around, put her in a bent over position, undid his belt and penetrated her vagina with his penis from behind for two minutes.  He took her to a haus win where he sat her down and whipped her for at least ten minutes with his belt. He told her that she must not tell anyone, her family, colleagues or police about what happened. She called her mother on the way back into town. They stopped at a service station. At her request he picked up her 18 year old daughter from school and then dropped both of them at her office. She did not tell her daughter what had happened. She told her colleagues that she was in danger and needed medical assistance. She saw her grandfather, a doctor, at his clinic. He gave her painkillers for the pain and bruises, which took a couple of weeks to heal. She did not report the matter to anyone because the appellant told her that he could easily find and kill her or her family.

50.	She went to Jayapura and returned a number of weeks later. The appellant reached out to her and offered to reconcile. She initially refused. As to whether there was any physical encounter thereafter, it was initially only through messaging. After that they met up in person in the presence of her daughter or another family member.  

51.	On 15 September 2018 she was at the residence of a Mr Kamasua with the appellant after a night out drinking at Red Rock Bar where the appellant had become aggressive. She went inside the house and called her cousin sister, Margaret. The appellant came into the house and shook her awake and when she did not move grabbed her by her head and threw her to the floor. He punched her and dragged her outside. She ran inside, he followed her, and punched and kicked her until she lost consciousness. When she woke up Margaret was there and Mr Kamasua drove them to her grandfather’s clinic. 

52.	Margaret gave evidence that she received a call from the complainant on the evening of 15 September 2018. She did not feel safe with the appellant and wanted Margaret to come and get her. Mr Kamasua’s house was just one street away from Margaret’s family home.  When she arrived she found the complainant lying on the floor with a cut to her nose which was bleeding.  With Mr Kamasua’s assistance she took the complainant to the clinic before reporting the matter to police. Chief Radiologist, Dr Lenturut-Katal, confirmed that the complainant was referred for x-ray on 21 September 2018 which showed that she had suffered a hairline fracture to the jaw.  

Defence Case

53.	The appellant, an engineer, gave evidence that on 15 September both he and the complainant were drunk. There was no assault at Red Rock Bar. They had gone to Mr Kamasua’s house and the complainant had gone inside to use the toilet and did not return for a long time. It was late and he was suspicious that she may have been talking to another man. He went in to find her. She was trying to sleep in the house. He told her that he wanted to go home. He kept on trying to wake her up and telling her that they had to leave. She swore at him. It was embarrassing. She kept telling him to “fuck off” in front of Mr Kamasua and his family. He picked her up and they struggled. She kicked as he was lifting her up and he threw her to the ground.  

54.	It was not until he received the brief of evidence in April 2019 that he became aware of the Owers’ Corner allegations. He was shocked. It never happened. He picked up the complainant from work at her request because she was upset on hearing that one of her relatives back in Jayapura had been in an accident. He had one man, a wantok, Gesau Kamanea, in the back of the ute as he usually did for security. They went to Owers’ Corner. He often goes there. They sat and talked at the bench.  He had no reason to threaten to kill the complainant and it was inconceivable and physically impossible that he would pick the complainant up against her will at her own office, in the presence of security, pick up two men armed with bush knives outside a school on a busy Monday morning, beat her continuously up to and at Owers’ Corner, pull her pants down, his pants down and then rape and whip her in full view of the market, the rangers, the locals and trekkers who were present at the time as it was the peak of the trekking season, and then immediately return her to her office after collecting her daughter from school.  He and the complainant had continued their relationship as normal until sometime after the Waigani incident when he ended the relationship with the complainant and moved on in a relationship with another woman.  

55.	Mr Momoa gave evidence that he was the ranger employed by the Kokoda Track Authority and living at Owers’ Corner between 2016 and 2020. He saw the appellant and a woman arrive on 30 April.  They sat at a table. A man with them went to the market. He went to his office a few metres away to check permits for the large number of porters who had arrived. There was no incident. Owers’ Corner is not a big area. It was trekking season so trekkers were coming and going, as well as many porters and village locals at the market.  He knew who the appellant was because he contested the elections for NCD and he used to go up to Owers’ Corner.  

56.	The ranger’s wife, Rose Iori, gave evidence that she was at the market that day, which is about five metres from the trekking office. There were mothers, children, the community there every day during trekking season and porters with the pick-up buses.  She saw a man like the appellant with a woman at a bench, close by. Trekkers came in at any time depending on how many days they walk. She does not know the appellant personally but had seen that he stood for Governor of NCD in 2017. He used to go up to Owers’ Corner once in a while. Nothing out of the ordinary happened that day.

MYTHS AND MISCONCEPTIONS

57.	We must first address some of the myths, misconceptions and stereotypes present in the submissions and the decision on verdict concerning sexual violence, many of which were reflected in and perpetuated by the law and rules of evidence formerly governing sexual violence cases. 

58.	In 2002 amendments were made to the Criminal Code and the Evidence Act 1975 by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 and the Evidence (Amendment) Act 2002, respectively, to remove certain assumptions about sexual violence and remove the bias that historically applied against complainants in such cases. 

59.	Prior to the amendments, rape was committed by a person having carnal knowledge of a woman or girl, not being his wife, without her consent: s 347, Criminal Code (repealed). Rape could not be committed inside marriage, reflecting the view that wives were to be sexually submissive to their husbands at all times.  

60.	Special rules of evidence also applied. Judges were required to warn themselves that it was “dangerous” to convict on the uncorroborated evidence of a complainant. This was a rule that did not apply to complainants of other serious criminal offences and only applied because women and girls were regarded as inherently unreliable and prone to fabricate and lie about sexual violence: see Didei v The State [1990] PNGLR 458; cf State v Paulo [1994] PNGLR 335.

61.	It was, and remains, permissible as an exception to the rule against hearsay, for a judge to take into account in support of a complainant’s credibility evidence that they immediately reported the alleged offence to another person or to authorities. The evidence of recent complaint is not corroboration. It is not proof of what is described.  It goes to show that the complaint was made in support of the complainant’s credibility.

62.	Some judges, however, adopted the doctrine of recent complaint applied in other jurisdictions which regarded the failure of a complainant to report an alleged rape at the earliest opportunity as a matter which of itself adversely affected their credibility: see The State v Anton Kumak (1990) N835. Other judges rejected that approach recognising that it was founded on outdated notions of how a complainant was expected to behave as a "perverted survival of the ancient requirement that woman should make hue and cry as a preliminary to an appeal of rape", per Oliver Wendall Holmes referred to in State v Merriam [1994] PNGLR 104, and inappropriate to the circumstances of Papua New Guinea for various reasons: see Birch v The State [1979] PNGLR 75; The State v Bikhet Nguares Paulo [1994] PNGLR 335. 

63.	In 2002 the definition of rape was expanded to include sexual penetration by a number of different means: ss 6 and 347, Criminal Code. The marital defence was removed.  Other offences like sexual assault were added as were offences expressly prohibiting sexual conduct with children, recognising that a child cannot meaningfully consent to such conduct: see Division 2A. The amendments also acknowledged that sexual violence can be committed by and against a person of any gender. 

64.	Consent was expressly defined as “free and voluntary agreement”: s 347A, Criminal Code. The Code made clear that submission because of fear, mistake or incapacity will not constitute consent. A person is not to be regarded as having consented to a sexual act merely because they did not physically resist or sustain physical injury, nor because they freely agreed to engage in another sexual act with that person or some other person on that or an earlier occasion.  It is not a defence where an accused believes that a person consented where such a belief arose because of self-induced intoxication, or reckless or wilful blindness, or where the accused did not take reasonable steps in the circumstances to ascertain whether the person was consenting: s 347B, Criminal Code.

65.	In addition, the old rule requiring corroboration was abrogated. A person may now be found guilty on the uncorroborated testimony of one witness and a judge shall not instruct themselves that it is unsafe to find the accused guilty in the absence of corroboration: s 229H, Criminal Code. 

66.	Amendments were also made to the Evidence Act to restrict evidence as to the sexual history of a complainant except where relevant to a matter in issue and with leave of the Court. The Court is also required to order that special measures be taken for the giving of evidence by a complainant in a case relating to a sexual offence (or a crime of violence) when satisfied that the quality of the witness’s evidence would likely be diminished by reason of fear or distress, subject to the interests of justice and the rights of the accused to a fair trial.

67.	None of these matters give a complainant in a sexual violence matter an unfair advantage. They simply remove the bias that previously applied against complainants in such matters. The right of the accused to a fair trial at all times remains paramount. 

68.	Nevertheless, myths and stereotypes sometimes persist. To address this in some jurisdictions, for instance in Australia, certain directions must be given to the jury. In Canada “stereotypical reasoning” which is material to the outcome in a sexual violence case is an error of law: R. v. Kruk, 2024 SCC 7.

69.	For our purposes, with respect to the myths and misconceptions present in this case we make the following matters clear.

70.	Rape is not “usually” perpetrated by strangers. As the case law, common sense and common experience of this country, and elsewhere for that matter, shows, all forms of violence, including sexual violence, may be and often is perpetrated by those well known to a complainant, including by their partners or spouses. As the Code now recognises, rape may be committed by a husband against his wife.

71.	Delay in the making of a complaint to another person or in reporting the matter to authorities does not of itself mean that the allegation is false. As the case law and common experience of this country show, people react differently and there is no typical or “normal” response to sexual violence. As the case law and common experience of this country also show, there are many reasons why a person may not complain, or may delay in complaining, about sexual violence. Fear, love, children, financial constraints, shame, stigma, cultural or community expectations or concerns about the criminal process itself are some such reasons. For similar reasons a person may remain in a relationship after sexual or other violence. 

72.	Whether delay in making a complaint is significant to the credibility of a particular complainant will depend on the circumstances of the case.

73.	As the definition of consent in s 347A of the Code makes clear, rape or sexual violence does not necessarily involve physical violence. The question is whether there was free and voluntary consent.

74.	A medical report is not required to corroborate an allegation of rape. A medical report may provide valuable corroborating evidence in some cases. Its content or its absence may raise doubt in others.  In some cases a report will be of little or no probative value, depending on the age of the complainant, the nature of the alleged offence, or the lapse of time between the alleged offence and the making of the complaint.  

75.	None of these matters change the burden of proof. 

76.	The State bears the burden of establishing its case beyond reasonable doubt. To do so it must prove each of the elements of the offence charged beyond reasonable doubt. That burden never shifts to the accused.  The accused is never required to prove his innocence. Other than in a few very limited exceptions, there is no obligation on the accused to prove any fact or issue in dispute.  Related to that, the accused’s right to silence is safeguarded under s 37(4)(a) of the Constitution. The accused is not required to give or call any evidence in his defence.  The fact that an accused chooses to do so does not alter the burden of proof: John Jaminan v. The State (No 2) [1983] PNGLR 318; Kitawal v The State (2007) SC927, amongst others. The evidence must be taken into account together with the other evidence in the case. The State retains the burden of proving the case beyond reasonable doubt having regard to the whole of the evidence.

77.	When the accused does give or call evidence and the case turns on a conflict between the State’s evidence and that of the accused it is not uncommon for it to be described as a case of “who to believe”.  But that is not the question to be determined.  It is not a matter of the trial judge choosing between the two competing versions of events, or of preferring the State’s evidence over that of the accused. If the trial judge believes the evidence of the accused then obviously they must acquit. If the trial judge is not sure but thinks there is a possibility that the accused’s evidence might be true then they must acquit. In the event that they do not believe the evidence of the accused then they should put it to one side. But it does not follow that the accused will be convicted.  The question will remain: is the State’s evidence credible and reliable, and if so, does it establish the elements of the offence beyond reasonable doubt? See Kitawal, supra; Liberato v The Queen (1985) 159 CLR 507 per Brennan J. 

78.	It is also well recognised that, in the absence of an error of law, a finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where it is glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong: Karo Gamoga v The State [1981] PNGLR 443; Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942; Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v. The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980; RD Tuna Canners Ltd v Sengi (2022).

79.	There are a number of reasons for this but key amongst them is the advantage the trial judge has not only to hear and observe each of the witnesses give evidence but also to assess that evidence in the context of the case as a whole. Assessing credibility is a complex task. It involves assessing the evidence of a witness having regard to the demeanour of a witness as well as the content of that evidence on its own and in the context of the evidence in the whole of the case. It must be assessed having regard to the direct evidence and the inferences available taking into account logic and common sense: Garitau Bonu and Rosana Bonu v The State (1997) SC 528; Balbal v State SC 860 (2003) and bearing in mind that a judge may accept or reject any part of a witness’ evidence: see for instance Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173. 

80.	It follows that an appellate court should consider a judge’s reasons as a whole rather than scrutinise particular words or phrases in isolation or out of context.  

OWERS’ CORNER RAPE AND ASSAULT
81.	Returning to the present case, the trial judge correctly identified that the burden lay with the State to prove its case beyond reasonable doubt.  On any fair reading of the decision as a whole, however, the trial judge erred in law by reversing the onus of proof.  

82.	The findings cannot be understood in the context of the decision as a form of words or a turn of phrase that was open to interpretation in isolation. The language was emphatic and applied in different contexts with cumulative effect across the judgment. The error was compounded by a number of factual findings which were not borne out by the evidence.  

83.	In summary, the trial judge found that the complainant was credible because the appellant was not credible, and furthermore, that the appellant was not credible because he did not lead or call certain evidence that he was under no obligation to call, and that the appellant failed to “convince” or “satisfy” her with “convincing evidence” that there was doubt as to the State’s case when the question to be determined was whether the State had established its case beyond reasonable doubt. 

84.	For instance, the trial judge accepted the evidence of the complainant on some facts which she regarded as critical to her decision because the accused did not call a witness that he was under no obligation to call: “the other reason why I accept the complainant’s story on this disputed fact is that the accused did not call the young boy whom he said had sat at the back of the vehicle to give evidence. There was no explanations as to why that witness was not called. The accused called his first name, but did not know his surname, although he said the boy was well known to them, including the complainant but yet he did not call him as a witness. For this, I am not convinced that the young boy was there at all”… “This raises doubts”.  The appellant was under no obligation to convince the trial judge the young boy (or as he said, his wantok) was present.

85.	The trial judge rejected the evidence of the ranger and his wife called by the appellant because they “did not convince me with sufficient evidence”…“it became necessary for the defence to give more convincing evidence”… “what would be convincing evidence would be records from the ranger’s office about the activities of the day”.  It was not for the appellant to produce convincing evidence nor was it for him to prove what activities had taken place that day at Owers’ Corner nor that nothing had been reported about the alleged incident to the ranger stationed there or to the nearby police station.

86.	In addition, the trial judge reasoned that: “These witnesses were not convincing and therefore the accused’s story is not corroborated. Because the accused’s story is not corroborated, it is untrue and the accused cannot be believed”. No witness’ evidence becomes untrue merely because it is uncorroborated.  

87.	Similar reasoning was applied by the trial judge in refusing to conduct a view of the alleged crime scene. The decision to conduct a view is at the discretion of the trial judge: s 574, Criminal Code; Denden Tom &Ors v The State (2008) SC967. For obvious reasons this Court will normally be very reluctant to interfere with a judge’s decision that it is neither desirable nor necessary to view the alleged crime scene. Nevertheless, the reasons for refusal are illustrative. 

88.	The first application was made, albeit somewhat prematurely, on the basis that it would assist the Court understand the complainant’s evidence in the context of Owers’ Corner as a public place with an office and market.  The application was rejected in part on the basis that the complainant was not in a position to see any office or market and the State did not produce any map or other evidence to show what was present at the time of the alleged offences. That may be but those were matters for the State to overcome. In addition, the trial judge told the appellant that “you can sufficiently establish your case by calling those rangers that you want to call”, when the appellant was not required to call any witness. 

89.	The second application was made towards the end of the appellant’s evidence. It was refused on the basis that the lack of any obstruction was not put to the State’s witness. Defence counsel had in fact challenged the complainant about the public nature of the place and whether others were present on the day of the alleged offence. 

90.	More to the point, and putting aside the question of any view, it was the State’s case that the appellant deliberately took the complainant to Owers’ Corner because it was a “secluded” place. Thereafter he wanted the alleged offences kept a secret and threatened to kill her or her family if she revealed them to anyone, her family, her colleagues or police. The State’s evidence about Owers’ Corner through its only witness was, however, limited. The State produced no other evidence about the place. The photographs in evidence were produced by the appellant. The photographs together with other evidence led by the appellant established that Owers’ Corner is a small area managed by the Kokoda Track Authority within which a monument, haus win, office and market place are located. The State produced no evidence to show what, if any, activities or persons would likely have been present on the morning of 30 April 2018, five days after ANZAC Day, at the place where trekkers leave or return to walk the Kokoda Track, in what was peak trekking season. 

91.	The question for the trial judge was whether in those circumstances and having regard to demeanour she was able to accept the complainant’s evidence beyond reasonable doubt that she was severely and continuously assaulted, over an extended period of time at Owers’ Corner, an hour or more, during which time she was also raped and whipped, and not just whether there was anyone present at the “precise” time the alleged offences took place.  

92.	In this regard the appellant points to a number of findings which are not supported by the evidence.  

93.	Contrary to the trial judge’s finding, the complainant did not “maintain that there was no one in the likes of trekkers, porters, rangers and the locals” present. Nor did she say that she saw no one at the market. Rather, she did not see a market place or a ranger’s office at all. 

94.	Similarly, the appellant did not give two different versions in evidence for meeting with the complainant on the morning of 30 April 2018 and it was not his evidence that he came to her office demanding answers. That was the complainant’s evidence and it was challenged in cross-examination.

95.	Again, the appellant did dispute that he took the complainant’s phone, demanded her password and checked her messages, by force or at all. The appellant denied that there was any argument on that day or that he assaulted her either on the way up to or at Owers’ Corner.

96.	It is also the case that the trial judge referred to a research paper which was not in evidence. Unlike the textbooks or journal articles which cite legislative and case authorities referred to by judges in their decisions it appears that this was in the nature of expert opinion or empirical research. The judge should not have conducted her own research outside the trial but for the reasons outlined above there is nothing erroneous about the general proposition that a complainant may not report sexual violence for various reasons and that one of those reasons may be that they are unaware that the conduct constitutes a criminal offence. 

97.	It is apparent, however, that the reason the complainant did not report the alleged rape until some time after the Waigani charge was at the District Court was of some significance to the trial judge’s finding on credibility. The trial judge said on at least three occasions that she accepted the complainant’s evidence that she did not report the alleged rape and continued to be in the relationship with the appellant because she was not aware that his actions were criminal in nature until she told her story to the authorities. Having reviewed the transcript we agree with the appellant, however, that the complainant never said that and nor was that the effect of her evidence. 

98.	The complainant said in examination in chief that she did not immediately report the matter to police because the appellant threatened to kill her and her family if she did.  In cross-examination she said she was initially afraid and then hoped to reconcile but pursued the matter when she realised that the violence was not going to stop.  It would have been open to the trial judge to accept that evidence but she did not consider it.

99.	The appellant also points to a number of inconsistencies in the complainant’s evidence both as to the circumstances of the alleged offences and the nature of the relationship afterwards.  

100.	For instance, the complainant said in evidence-in-chief that she was in the passenger seat when they arrived at Owers’ Corner, whereas in cross-examination she maintained that she was in the back seat between the two armed men.  In chief, the complainant was able to describe some of her surroundings and certain distances at Owers’ Corner, including the dirt road leading into Owers’ Corner, the cliff, the monument, the location of the vehicle and the haus win, in some detail, whereas the effect of her evidence in cross-examination was that she was unable to look up at any time because she was protecting her head from the appellant’s continuous punches. In chief, the complainant was taken away from the cliff towards the monument by the appellant who raped her and then took her to the haus win where he whipped her for at least ten minutes.  In cross-examination she was taken by the appellant to the bench and whipped there first before being taken back to the edge of the cliff and raped.  

101.	The events of the morning as described by the complainant might objectively be regarded as harrowing. It may well be that a judge might have reasoned that someone in the position of the complainant would have an imperfect recollection about the timing and sequence of particular facts but there was no consideration of that in the verdict. The inconsistencies also needed to be considered, however, in light of the high level of detail given in evidence in chief about what happened against what appear to be equally emphatic statements under cross-examination.   

102.	With respect to the relationship, the effect of the complainant’s evidence in chief was that by the date of the Waigani assault on 15 September 2018 the relationship was still very much in the tentative stages of reconciliation. They were “just only communicating again after the Sogeri incident” and had not yet slept together again. In cross-examination, however, she said that they had resumed a sexual relationship after Owers’ Corner and before the Waigani assault. That was an inconsistency of some significance because it was the appellant’s case that they had continued the relationship throughout the period and until sometime after the Waigani incident was already before the District Court and that it was only after he terminated the relationship in late 2018 or early 2019 that the complainant reported the Owers’ Corner allegations, which he said were false. 

103.	In fairness to the trial judge the inconsistencies were not addressed by the State and the trial judge did not consider them. “The mere existence of inconsistencies does not mean that the State's case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be”: Devlyn David v The State (2006) SC881; Kapahi v State (2010) SC1023. 

104.	None of the inconsistencies in the complainant’s evidence are necessarily irreconcilable but it cannot be said that they are peripheral to the matters in issue and they needed to be considered.  

105.	In all the circumstances the verdicts for guilt on the Owers’ Corner rape and assault charges must be set aside. This is not a case where we are able to be satisfied on the material before us that no miscarriage of justice has occurred.  Accordingly, we uphold the appeal on those counts, set aside the conviction and sentence and substitute a verdict of acquittal in each case.

THE WAIGANI ASSAULT
106.	There was little dispute at trial that there was some form of assault on 15 September 2018. The dispute was the nature and extent of the assault and whether the State had excluded the defence of provocation beyond reasonable doubt.  

107.	The trial judge had the opportunity to hear and observe the complainant and she accepted her evidence. Margaret’s evidence that the complainant was bleeding to her face when she found her at Mr Kamasua’s house was consistent with that evidence. The medical evidence establishing that the complainant suffered a hairline fracture to the jaw was yet further evidence in support of the charge. 

108.	The State also relied on admissions made in the record of interview that the appellant was frustrated by the fact that the complainant would not leave, that she screamed, swore at him, that he was angry and punched her, for which he was very sorry.  

109.	The appellant admitted in evidence that he was frustrated, that the complainant swore at him and that he picked her up, they wrestled, and he threw her to the ground but denied punching her or admitting that he did so to police.

110.	The trial judge refused to exclude the appellant’s record of interview on the basis that no notice of voir dire had been filed. The fact that a notice of voir dire has not been filed challenging the record of interview does not exclude such a challenge being brought, even if it arises during the trial, in which case the trial should be adjourned to allow the prosecution to prepare itself: Paru v State (2017) SC1632 at [6]; see also the Criminal Practice Rules, Order 8, Rule 5.  

111.	But no voir dire was required in this case. The appellant was not challenging the admissibility of the record of interview on the basis that it was not given voluntarily; he was challenging the accuracy of the record, which is a matter for the trial proper: The State v Joseph Maino [1977] PNGLR 216; The State v John Yambra Pai (1986) N535; State v Paru (2021) N9108 at [33].

112.	Police interviews are not electronically recorded as they are in many other jurisdictions. It appears to us, however, that the simple practice of providing a person with a copy of their original record of interview at the time it is signed would go some way towards addressing issues about accuracy.  

113.	Nevertheless, the investigating and corroborating officers were required by the defence and did give evidence. Neither of them were challenged as to the content of the record of interview other than to confirm that the appellant was not questioned about the Owers’ Corner allegations. The interview was conducted in the presence of the appellant’s lawyer and the appellant signed all of its four pages.  The trial judge was entitled to rely on it.

114.	In short, the evidence of assault was overwhelming. 

115.	It was for the State to exclude the defence of provocation and not for the appellant to establish it. 

116.	Even if it was accepted that the appellant was frustrated and embarrassed by the complainant’s actions and that she swore at him, refused to go with him and wrestled with him, the evidence excluded the possibility beyond reasonable doubt that he was deprived of the power of self-control or, in any event, that his actions were proportionate to the provocation for the purposes of s 267, Criminal Code. 

117.	The appellant has failed to demonstrate that the conviction for common assault at Waigani on 15 September 2018 is unsafe or unsatisfactory.  

ORDERS

118.	We make the following orders.
	
(1)	The appeals against the convictions for rape and assault on Count 1 and Count 2 of the indictment, respectively, are upheld. 
(2)	The convictions on Count 1 and Count 2 are quashed and the accused is acquitted.
(3)	The appeal against the conviction for assault on Count 4 of the indictment is dismissed and the conviction confirmed.
(4)	The sentence of one year of imprisonment is affirmed.
(5)	Having regard to the time spent in custody to date, and subject to the appellant being in custody pursuant to some other warrant, the warrant of commitment is quashed and the appellant is discharged from custody.
________________________________________________________________
Dotaona Lawyers:    				Lawyer for the Appellant
Office of the Public Prosecutor:		Lawyer for the Respondent