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Kai, The State v [1976] PNGLR 481 (19 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 481 - The State v Kewa Kai 

[1976] PNGLR 481

N66

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KEWA KAI

Mount Hagen

Prentice DCJ

16 October 1976

18-19 October 1976

CRIMINAL LAW - Evidence - Corroboration - Sexual offences - Young children - Rule of practice requiring corroboration applicable - Constitution of the Independent State of Papua New Guinea Sch. 2.2, Sch. 2.3.

The continued application of the former rule of practice in cases involving complaints of a sexual nature, that the tribunal of fact should be alert to the dangers of convicting unless corroboration of the complainant’s evidence is available and particularly when the evidence is that of children, is consistent with the development of the underlying law that is imposed upon the courts by Sch. 2.3 of the Constitution of the Independent State of Papua New Guinea.

If the rule of practice is considered to be a principle or rule of the common law of England within the meaning of Sch. 2.2 of the Constitution, then it is neither inconsistent with a Constitution Law or Statute, nor inapplicable nor inappropriate to the circumstances of Papua New Guinea, nor inconsistent with established custom. If considered to be outside the actual principles and rules of that common law, such a rule of practice would be consistent with the principles of natural justice.

Trial

The accused was charged upon indictment with two charges of violating a young girl, the first charge being rape, and the second unlawful carnal knowledge of a girl under 16 years of age.

Counsel

IC McWalters for the State

JL Cagney for the accused

19 October 1976

PRENTICE DCJ: The accused faces two charges of violating a young girl Nirua Simin; the first is of rape, the second of unlawful carnal knowledge of a girl under 16 years. Under s. 578 of the former Code it would have been sufficient to charge him with rape — the other could have been found as an alternative verdict. Under s. 553 of the 1974 Code, this course apparently is no longer open to the Prosecutor. Though the section is headed: “Charge of Rape and like Offences;” the body of the section refers only to alternative verdicts open on a charge of unlawful carnal knowledge of a girl under 12. Perhaps there has been an oversight in the drafting of the new Code.

I remind myself that in such a case as this it has always been held that the tribunal should be alert to the danger of convicting unless corroboration be available of the complainant’s charge. It should proceed with caution also and normally look for corroboration, when the evidence is that of children.

The necessity for such a direction to a tribunal of fact has hitherto and at Independence been held to be a rule of practice falling short of a rule of law. As such it may be thought to be a principle or rule of the common law of England within the meaning of Sch. 2.2 of the Constitution. If it be so considered then it is I think neither inconsistent with a Constitutional Law or Statute, nor inapplicable nor inappropriate to the circumstances of the country at present, nor inconsistent with established custom. If it be considered as outside the actual principles and rules of that common law, such a rule of practice would I think be consistent with the principles of natural justice. Its continued application would I think be in keeping with the development of the underlying law that is imposed as a duty upon the courts (by Sch. 2.3 Constitution).

The charges relate to a happening in bush near the border of Alim Plantation on the morning of 10th August last. Following a molestation in the bush, an alarm was raised and the complainant immediately subjected to a physical examination of her private parts by the Enga wife of the plantation manager. This witness observed blood and sperm issuing from the complainant’s vagina. At an examination later in the evening about 7.00 p.m. by a doctor at Hagen hospital, it was recorded that active sperm was still present in the vagina and that there was a fresh tear in the hymen — all consistent with intercourse within the preceding 24 hours.

Mr. McWalters agrees that intercourse had taken place on that day and that the complainant is shown by the evidence to be under the age of 16 years. But he takes his stand on the dubiety of the identification by the complainant, a Chimbu girl of some 11 years of age or a little older, of the accused, a Hagener, as the man who not only assaulted her but had intercourse with her. He submits that if I accept the identification I may yet find sufficient reason for doubting whether the girl did not consent to intercourse. The accused gave evidence on oath denying intercourse, so no question is raised by his evidence that the accused might have honestly believed the girl was consenting (if that be a defence under the Code — which I doubt). If the identification point goes, defence counsel concedes there should be a conviction on the second count.

I see no reason to doubt the complainant’s account of what happened. She is positive in her identification of the accused as her attacker. Very shortly after the attack she complained to her mother that she had been violated — she was then distressed and crying. The girl mentioned to her mother that her assailant was wearing a green belt. Apparently, the plantation labourers immediately thereon rushed to neighbouring bush, and detained the accused who was wearing a green plastic (“Gumi”) belt with a dark red shirt and traditional tanket leaves and bilim. Her account of the attack is corroborated in detail by another girl of a little less size who accompanied her, saw her seized by the man whom she also identifies as the accused, who was carrying an axe; saw her thrown to the ground and subjected to sexual intercourse. No major discrepancy appeared in their accounts. They were frank, open, and impressive young witnesses.

In a record of interview the accused denied sexual intercourse, but admitted accosting the two girls — only because they were trespassing on his clan land. He agreed with their account that the girls were getting leaves (for medicinal purposes); he said he had his axe with him but had placed it on the ground when he was eating a pineapple. He admitted throwing the complainant girl to the ground — but denied further assault. In cross-examination, he first agreed that the record of interview was correctly recorded and acknowledged (as the interview itself and the evidence of the Constable averred). The record of interview contains an admission that when pushing the girl to the ground he intended to have sex with her and that he got a view of her body and finding her breasts unformed, so concluded she was too small and desisted. Later in cross-examination he denied that he had said these things to the police. Everything else in the record of interview was correct he said. But then when the next question and answer were put to him “If her breast was grown up are you going to have sexual with her at this time”, “Yes, I am but because her breast is not grown up so I left her” — he denied that he had said that as well. He agrees that the police read these portions back to him and that he did not then deny having made these particular answers. In his sworn evidence he denied that the evidence of both the girls that after he had had intercourse he said he would return in the afternoon with K6 for each of them, was true.

I am satisfied beyond any reasonable doubt that the accused had sexual intercourse with the complainant that morning. I accept the evidence of the girl and her companion in detail, and in particular that the accused was carrying an axe which he had beside him during the act of intercourse. I am satisfied that the girl did not consent to the intercourse. The circumstances, the children’s age, the thick bush growth, the age and strength of the man, his carriage of an axe, were in any event such as to terrify both complainant and companion (as they averred), to such an extent, that if by her lack of violent struggle it could be thought or said that she was consenting, such “consent” must be held to have been obtained by intimidation and fear of bodily harm.

I convict the accused of the crime of rape.

Verdict of guilty of rape.

Solicitor for the State: N. H. Pratt, Acting Public Solicitor.

Solicitor for the accused: K. Egan, Acting Public Prosecutor.