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Birch, The State v [1978] PNGLR 79 (13 April 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 79 - The State v John Laurision Birch

[1978] PNGLR 79

N142

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

JOHN LAURISTON BIRCH

Kavieng

Greville Smith J

10-13 April 1978

DISCOVERY AND INTERROGATORIES - Production of documents - Inherent jurisdiction of court - Document actually and visibly in court - Document incriminating - Copy record of interview - Copy record of interview supplied by prosecution - Document not privileged - Order for production made.

The court has an inherent power in criminal proceedings and in the absence of a notice to produce, or consent, to obtain documents actually in court, and save in the case of allowable exceptions such as privilege to deliver them to the prosecution.

Held

accordingly, that counsel for the defence in a trial on charges of rape and unlawful carnal knowledge could be required to produce to the prosecution a signed copy of a record of interview actually and visibly in court, which document had been supplied to the accused or his solicitor in accordance with the usual and proper practice by the prosecution and was therefore not a document to which any privilege attached.

Spenceley v. Schulenburg [1806] EngR 156; 7 East., 357 at p. 358[1806] EngR 156; , 103 E.R. 138, at p. 139 and Kennedy v. Lyell [1883] UKLawRpCh 103; (1883) 23 Ch.D. 387 at pp. 405-406 and R. v. Adams [1965] VicRp 72; [1965] V.R. 563 at p. 565 referred to.

Trust Houses Ltd. v. Postlethwaite (1944) 109 JP. 12 D.C. distinguished.

CRIMINAL LAW - Practice and procedure - Witnesses - Control of court over - Questioning by judge - Right of judge - Extent permissible - Interests of justice - Fair trial.

EVIDENCE - Witnesses - Control of court over - Questioning by judge - Right of judge - Extent permissible - Interests of justice - Fair trial.

In criminal proceedings the judge has an overriding duty to secure a trial which is fair to both parties and the community: he has power to intervene by asking questions or calling witnesses, if he considers that course is necessary to the ascertainment of truth or in the interests of justice.

R. v. Hircock [1969] 1 All E.R. 47; R. v. Hulusi and Purvis (1974) 58 Cr. App. R. 378; Jones v. National Coal Board [1957] EWCA Civ 3; [1957] 2 Q.B. 55; R. v. Hamilton [1969] Crim. L. R. 486; Richardson v. The Queen [1974] HCA 19; (1974) 48 A.L.JR. 181 at p. 183; R. v. Williams [1955] Crim. L. R. 389, and R. v. Perks [1973] Crim. L. R. 388 referred to.

Held

Accordingly that there had not been a mistrial, where in a trial on charges of rape and unlawful carnal knowledge, the prosecutrix was an immature native girl of about eleven years and a shy, withdrawn and reluctant witness of whom the trial judge, in an endeavour to ascertain the facts, asked numerous questions: no injustice had thereby been done to the accused, no unfairness nor any appearance of injustice, unfairness, bias or hostility to the accused had been done by the court.

CRIMINAL LAW - Particular offences - Rape - Consent - Whether absence of evidence of physical resistance amounts to consent - Finding of non-consent available on alternative grounds - Prosecutrix aged about 11 years - Immature native - Accused in loco parentis - Sufficiency of evidence of non-consent - Criminal Code s. 357.

In order to prove rape of a girl under the age of sixteen years, it is desirable for the prosecution to prove either that she physically resisted or if she did not that her understanding and knowledge was such that she was not in a position to decide whether to consent or to resist. (R. v. Harling [1938] 1 All E.R. 307; 26 Cr. App. R. 127 and R. v. Howard [1965] 3 All E.R. 684; 50 Cr. App. R. 56); but the lack of physical resistance will not necessarily imply consent where as a matter of reasonable inference a finding of non consent is available on an alternative ground (such as age, intellect, futility of resistance).

Rex v. Bourke [1915] VicLawRp 26; [1915] V.L.R. 289 at p. 296; R. v. Camplin [1845] EngR 212; (1894) 1 Cox. C.C. 220; R. v. Young (1878) 14 Cox C.C. 114; R. v. Fletcher (1859) Bell C.C.; R. v. Lang (1976) Cr. App. R. 50 referred to.

Held

accordingly in a trial on a charge of rape where the prosecutrix was an immature native girl of about eleven years, and the accused a man of some 55 years in loco parentis to the prosecutrix, and where there was no evidence of physical resistance but where there was evidence that she knew of and understood the nature of sexual intercourse, and that sexual intercourse with the accused would be wrong, and where although there was no direct evidence that she had not consented there was evidence from which absence of consent might reasonably be inferred beyond any doubt, that there were sufficient alternative grounds to physical resistance to justify a finding of non-consent.

Trial

This was the trial of an accused on charges of rape and unlawful carnal knowledge. Facts relevant to the reported principles appear in the reasons for judgment hereunder.

Counsel

M. M. Maraleu, for the State.

Sebulon Watt, for the accused.

Cur. adv. vult.

13 April 1978

GREVILLE SMITH J: John Lauriston Birch was indicted on circuit at Kavieng on 10th April, 1978, before me on a charge of committing rape upon one Lavinia Taraban on or about the 20th September, 1977 and also on a second count of on or about the same date unlawfully having carnal knowledge of the said Lavinia Taraban a girl under the age of twelve years. On the 13th April, 1978 after a four day trial, I convicted Birch on the charge of rape, and on the charge of unlawful carnal knowledge. I convicted him, as was open under the provisions of s. 553 of the Criminal Code, of unlawful carnal knowledge of a girl under the age of sixteen years. I sentenced Birch to imprisonment with hard labour for three and one half years for the offence of rape and one and one half years on the second conviction, to be served concurrently. At the time of conviction I gave a short extempore judgment and stated that after returning to Port Moresby at the end of the circuit I would issue a full written judgment covering also certain matters that arose and were ruled upon during the course of the trial. This I now do.

The State evidence, leaving aside until later the evidence of the prosecutrix, established as follows.

Several years before the date of the alleged offence the father of the prosecutrix (who at the outset of his evidence volunteered an emotion charged statement that he had wanted nothing to do with the prosecution of the accused) gave permission to the accused, whom he had known and worked with for many years and who had been “very good” to him, to take the prosecutrix to live with the accused in the accused’s house with an understanding that the accused, a single man then about fifty-five years old, would bring her up, and marry her when she was old enough.

The prosecutrix was the first witness called by the State and it is to her evidence and her behaviour in the witness box, and events arising thereout, that I now turn.

Her demeanour in the witness box from the outset was shy and withdrawn and so it remained throughout. She had been attending a Catholic school and gave evidence under oath. If she were indeed twelve years old it was an immature twelve, otherwise as well as physically.

The prosecutrix’s evidence as to what happened on the night in question between herself and the accused opened with the following as I recorded it:

“We finished eating and I went to have my bath then I went to sleep. The defendant went to wash himself. He then went to sleep. I know this as I was about to sleep when he came in.”

Having given that evidence the witness declined by silence to answer any further questions asked by the State prosecutor as to what happened thereafter and after a while and repeated attempts by the prosecutor it became apparent that the prosecution had reached an impasse with the witness, and that the State case was on the verge of aborting on her silent refusal to continue with her evidence.

I then asked her why she would not tell the Court what had happened. She responded only with silence. After a long pause to give her every opportunity to reply I then asked her whether anyone had told her not to tell the Court what had happened. This question likewise was not replied to. By that time I had formed the opinion that either she had a powerful psychological block arising generally from the subject matter being referred to or from specific trauma, or that she had been directed not to speak about events which were at the heart of the charges. I had not at that time heard the evidence of the father. There was no appearance of defiance in her attitude, only of distress.

In the circumstances committal for contempt would have been inappropriate, impracticable and probably futile and as an alternative I continued the questioning myself, and thereafter very gently asked the witness very many questions. Many of the questions were not answered and in such questioning I frequently retreated as a matter of tactics to peripheral on later or earlier or unconnected matters, though returning repeatedly to central issues. There were long pauses at the end of most of the questions, awaiting reply. In asking these questions, I observed the same restraints as it would have been proper to impose on the State prosecutor. Throughout there was no objection taken by the defence (or for that matter the prosecution) either to the fact of my questioning or to the manner of questioning or to the form or substance of any question. My questioning at that point occupied one and three quarter hours. During that time the following evidence emerged, very much piecemeal.

“I went to sleep in a bed. He went to sleep on the same bed. I was not wearing any clothes. Neither was he. When he got in I was lying facing away from him. There was nobody in the house except myself and Jack Birch. It was on that bed that Jack Birch did wrong to me. I did not want it. I felt pain inside my vagina. When I felt the pain I cried. The pain was caused by his penis. When I cried he pulled out his penis and said ‘Don’t cry’. Then I was the only one in the bed. Afterwards Jack slept on the bed whilst I slept on the floor. On the nights before this Jack and I always slept in the same bed. He had never done this to me before. I knew at the time that it was a wrong thing, that it was bad. He had never before done any bad thing to me. When he put his penis in my vagina I was face down. He did not speak to me when he got into bed. No one has ever put his penis into my vagina before. I know that other boys and girls and men and women do this together. I knew this at the time Jack Birch did it to me. I don’t know whether there is a name for it in my language. When Jack Birch was doing this to me I did not do anything to let him know I didn’t want it. When I cried I did not cry out very loudly. He did not ask me if he could do this thing to me. I did not know he was going to do this thing to me.”

After the foregoing evidence had been given by the prosecutrix I invited Mr. Maraleu for the State to continue with the examination-in-chief, and he then adduced certain evidence from the prosecutrix which, as well as answers dealing with some less immediate matters, included the following:

“When he pulled his penis out I felt blood. It was coming from my vagina. The flow of blood continued. I saw it when it was going down my leg. It was red. I knew it was blood....When he put his penis in I did not do anything.”

In cross examination by counsel for the defence, with a considerable amount of other evidence the prosecutrix gave the following:

“I had (at the time of the trouble) lived in his house for quite a long time. I had been sleeping in his room all that time. Jack had never touched me before when we were in bed together .... It is correct that I was lying face down. He was at my back ... He has never put his thumb inside my vagina ... The accused has never been violent to me or threatened me. I do not think that if I had left the bed before it happened he would have been violent towards me.”

At a later stage of the case for the prosecution the State at my instance recalled the prosecutrix and upon recall she gave the following evidence in response to questions from me:

“I did not at the time it happened or before do or say anything that might have made him think that I was agreeable. The bed upon which this happened is the only bed in the room. Jack Birch and I usually slept together on that bed. I did not say anything to him when I felt the pain. When he was doing this to me I didn’t do anything to let him know I did not want him to do it.”

The witness made no answer to questions as to why she and Birch usually slept together or as to whether she had a bed of her own.

There was no direct challenge in cross-examination of the evidence of the prosecutrix as to sexual intercourse (including penetration), as to the accused having been the person who had had such intercourse with her, or as to her evidence indicating absence of consent, and it was not put to her that she had been a consenting party.

It was clear from evidence from several sources that the prosecutrix had never been the accused’s wife.

During the course of the State case a number of additional matters arose, which included the following:

As part of her evidence-in-chief the prosecutrix stated that the morning after the night of the offence she had told her sister what had happened to her. No objection was taken to this evidence being given. Her sister Aini aforementioned stated during her evidence that after the prosecutrix had returned to the house from the beach Aini asked her, as mentioned hereinbefore, about the blood in the house and whether the accused had “spoiled” her, to which questions the prosecutrix replied. Defence counsel objected to evidence from Aini as to the replies on the basis that such replies did not constitute a recent complaint admissible upon the principles set out in R. v. Lillyman[lxv]¹, not having been made at the first reasonably available opportunity and having been made in response to leading questions. I ruled that the evidence objected to was not admissible on the principles set out in R. v. Lillyman[lxvi]² but was admissible on the basis that it was evidence of an event, identifiable by its constituent elements, attested to by the prosecutrix as occurring on the day following the night of the offence, and by Aini as occurring on the day upon which she found the blood which according to Aini was also the day upon which the prosecutrix had been taken by the police to and examined by Dr. Mako, thus fixing the date of the latter occurrences in relation to the date of the intercourse alleged, defence counsel having been at some pains to suggest in cross-examination of the prosecutrix that intercourse had occurred at least several days earlier than so indicated. I further ruled that evidence from whatsoever source or sources of the fact of and contents of the conversation attested to by the evidence so admitted could not be regarded for any other purpose than to fix the time of occurrence of the sexual intercourse in relation to the time of occurrence of the other later events mentioned.

During the evidence of Sergeant Jamaney, prosecuting counsel who, I should say, was without assistance in court, after laying the necessary foundation sought to tender the record of interview, only to discover that he was in possession neither of the original nor a carbon copy and that neither was in the court file, and that the only available carbon copy was one in the possession of defence counsel. This copy bore, as it happened, the carbon copy signatures of the accused and each of the two police officers, affixed in the usual fashion, and was therefore fully identifiable by the witness. In order to supply this lately discovered and disconcerting lack, prosecuting counsel requested defence counsel to oblige him by handing over to him the signed copy of the record of interview in exchange for a typed transcript of such record, intending obviously to tender the defence copy, but this defence counsel refused to do. Prosecuting counsel in this extremity then appealed to the court.

Evidence as to the contents of confessions must be accurate to be of any real use, to give oral evidence of the conversations recorded on the record of interview the police officer would in this case have had to cast his mind back seven months, and the written record made at the time from which he might have refreshed his memory was the unavailable record of interview itself. It thus appeared that what, as far as I then knew, might be valuable and admissible evidence in the matter of grave criminal charges, actually in court, would be unavailable to the court owing simply to a breakdown in the mechanics of proof. I therefore ordered defence counsel to deliver the signed copy in his possession to the court. Defence counsel objected to such order on the ground that the document was in his hands privileged from production as being a confidential document obtained by him on behalf of his client for the purposes of the defence case. Such objection I overruled. The document in question had been supplied to the accused or his solicitor in accordance with usual and proper practice by the prosecution, and a document supplied to a party by or on behalf of the opposite side is not privileged; (Spenceley v. Schulenburg[lxvii]³; Kennedy v. Lyell[lxviii]⁴).

There is another ground of objection upon which defence counsel might have relied, based on the case of Trust Houses Ltd. v. Postlethwaite[lxix]⁵. In that case a magistrate, in very similar circumstances, ordered the production by a defendant in a criminal charge of a receipted invoice. It was held on appeal that the magistrate had no power to order the production of the document. The judgment of the court which was delivered by Humphreys J contained the following:

“Had the magistrate any power to make that order as distinct from making a suggestion that it would be desirable? In our opinion the learned magistrate had no such power. There is, if it were necessary to refer to it, authority to that effect, but the authority is only an exemplification of the general rule, which is one of the fundamental rules of practice in this country, that a defendant is not to be called upon to make any admission or any statement or produce any document which, in his opinion, may tend to incriminate him. It may be undesirable, but he is entitled to sit by and say: ‘Prove your case against me by legal evidence if you can. I say nothing and I produce nothing.’

In this case it is quite clear from the language used by the learned magistrate that, when the original document was produced, he found that it was much more against the contention of the appellants than against the contention of the prosecution. In other words, the original document was useful for the prosecution, and it was partly upon the production of that document and the proof which it thereby gave as to the price which he had been paid and the article for which it was paid, that the learned magistrate came to his conclusion. In our opinion, if there was nothing else in this case, it would be impossible to hold that the appellants had been properly and justly convicted because part of the case upon which they were convicted was extracted from them by an order of the court when it had no power to make such an order. The same rule must be applied to summary proceedings, so long as they are criminal proceedings, as applies to proceedings on indictment. Therefore, the document was as inadmissible as would be a confession made by an accused person if that confession had been extracted by threats or promises on the part of some person in authority. Therefore, in our view upon that ground the appeal must be allowed and the conviction quashed.”

In the Victorian Full Court case of R. v. Adams[lxx]⁶, O’Bryan J in distinguishing the case of Trust Houses Ltd. v. Postlethwaite[lxxi]⁷ from the case with which that court was then dealing made concerning the former the following observations:

“That case was concerned with an entirely different problem from that which confronted the learned trial judge in this case. There it was not a question of what could be asked of an accused person who had elected, on his trial, to go into the witness box. The prosecution in that case wanted the defendant, which was a corporation, to produce certain documents and notice to produce had been given to it. Counsel for the defendant (there being no representative of the defendant in the witness box) refused to produce the documents. It was held that the defendant was entitled to refuse to produce them. The fact that notice to produce had been given did not entitle the prosecution to compel the defendant to produce a document that might tend to incriminate it any more than a notice to admit would entitle the prosecutor to put the defendant, or in the case of a corporation, somebody representing it, into the witness box to make the desired admission, or to compel him to make a statement out of court about facts relevant to the proceedings.”

In my opinion there is a fine but real and vital distinction between the facts in Trust Houses Ltd. v. Postlethwaite[lxxii]⁸ and the instant case. In Trust Houses Ltd. v. Postlethwaite[lxxiii]⁹ it was evidently not known by the prosecution or the court when the order was made where the document was although “it was probably in court” (p. 12). Compliance with the order would have required the defendant to act to his own prejudice by utilizing his knowledge of the whereabouts of the document tantamount I suggest to stating to the court where it was and, if it were not in court, in addition by bringing it into court. These two acts would have been positive self-incriminatory acts, acts of supplying evidence against himself, which he could not legally be compelled to perform. In the instant case, however, the accused (or his solicitor) was not called upon to disclose the whereabouts of the document or utilize against himself (or his client) his knowledge of its whereabouts, as its whereabouts were known “aliter” (defence counsel held it in his hand) and he was not required to bring it into court as it was already in court. He was not required to “produce” it (L. producere — to bring forward — Webster’s International Dictionary, 2nd ed. p. 1974). The distinction I see is between actually producing a document on the one hand and simply relinquishing possession, not standing on possession, of it on the other.

The distinction may be considered in this way. The document was being sought by the prosecution as evidence of the commission of the offences charged. If its whereabouts had been unknown there would have been no legal means of requiring the accused or his solicitor to disclose where it was or to bring it forth. However, if the court issued a warrant under the provisions of s. 6 of the Search Act 1977 (though note the words “any such offence” in s. 6(1)(b) and s. 1(1)(c) — obvious errors) and the person to whom the warrant was directed under authority thereof went to the accused’s house or his solicitor’s office, the document not being privileged, and found it there he could take possession of it, (s. 10(1)(c)) for production to the court as something “likely to afford evidence of the commission” (s. 6(1)(b)) of the offence. If he found it actually in the hands of the accused or his solicitor he could take it from him if that person would not surrender or relinquish it, and might search the accused in his home in quest of the document or the solicitor in his office (s. 9) if that appeared reasonably necessary. All this being so it seems undesirable, indeed incredible, that in the circumstances of the instant case the accused’s solicitor could not be ordered to surrender or relinquish possession of the document which he held in his hand in court, and I do not think that the decision in Trust Houses Ltd. v. Postlethwaite[lxxiv]¹⁰ goes that far. If so, perhaps the court should have issued a warrant under s. 6 of the Search Act.

If the principles of the judgment in Trust Houses Ltd. v. Postlethwaite[lxxv]¹¹ do indeed on a proper interpretation extend to the facts of the instant case then I would have declined to follow it. Even in the application of their view of the law to the facts in the case before them the court in Trust Houses Ltd. v. Postlethwaite[lxxvi]¹² did not disagree that it produced an undesirable result and I have indicated already my view of the result if their ambit were to include the instant case. Such a result would be one for which nothing could be said and one which would obstruct the doing of justice. The provisions of Sch. 2.2(1) of the Constitution require the principles and rules of the law in England specified therein to be applied in this country only to the extent that they are not inappropriate to the circumstances of the country and on that basis alone I would have declined as aforesaid. It may be that the segment of the law under consideration so interpreted would not be more inappropriate to the circumstances of this country than to the circumstances of England, but it is inappropriate to the circumstances of this country just the same. It is not a matter of comparisons. Furthermore s. 158 of the Constitution provides that in interpreting the law the courts shall give paramount consideration to the dispensing of justice and an interpretation of the law as laid down in Trust Houses Ltd. v. Postlethwaite[lxxvii]¹³ which would produce in the instant case the same result as it produced in that case would not in my view, as I have already indicated, contribute to the doing of justice, nor to the appearance of justice having been done, just the contrary.

The record of interview was, in compliance with my order, handed by defence counsel to the court. It was then tendered by the prosecution and, without further objection, received into evidence. It contained as it turned out, no incriminating matter except perhaps in so far as it showed that the accused when interviewed made no complaint or allegation that the prosecutrix, in relation to whom he stood to a considerable extent “in loco parentis”, had been sexually dealt with by anyone else or at all. This point, however, was also covered by evidence given orally by Sergeant Jamaney and not challenged or contradicted in any way. I accepted the sergeant’s evidence on its own merits as truthful and reliable.[lxxviii]¹⁴

During the prosecution case I deemed it necessary for the purposes of full ascertainment of the truth to ask, and did ask, many questions of prosecution witnesses in evidence-in-chief and re-examination in addition to the prosecutrix, and for the same purposes asked the prosecutor to recall, and upon recall questioned further, several prosecution witnesses including the prosecutrix. In asking such questions I subjected myself to the same restraints as to manner, form and substance as it would have been proper to impose upon prosecuting counsel and at no time was there any objection from the defence.

The only significance I attached to the absence of objection was that if during the event there had been any unfairness or any appearance of unfairness to his client then defence counsel should have objected, as it was his duty to do, and the fact that he did not do so tended to undermine any contention made later of unfairness or of an appearance of unfairness.

It was claimed later by the defence that during the case for the prosecution the court asked of prosecution witnesses a total of one hundred and eighty-six questions and the prosecuting counsel one hundred and twenty-three questions. I have no way of knowing whether these figures are accurate or substantially correct, but I have no reason to doubt them. As I have already indicated it was, in particular, necessary for the court to ask the prosecutrix very many questions.

At the close of the case for the prosecution, counsel for the defence submitted that there was “no case to go to the jury” or alternatively that the case was “so tenuous that it would be unsafe and unsatisfactory for it to go before the jury” and that the accused should therefore at that stage be acquitted and discharged. (Halsbury 3rd ed. vol. 11 p. 167). In support of such submission the following arguments were advanced. A. That as there was no evidence that the prosecutrix physically resisted and as she knew of and understood the nature of sexual intercourse a finding of non-consent was not open.

Counsel for the defence relied upon the note to s. 347 of the Queensland Criminal Code appearing in Carter which reads as follows:

“In R. v. Howard [1965] 3 All E.R. 684; 50 Cr. App. R. 56, it was held, following R. v. Harling, supra, that in order to prove rape of a girl under the age of sixteen years the prosecution must prove either that she physically resisted or if she did not that her understanding and knowledge was such that she was not in a position to decide whether to consent or to resist. The girl in question was six years of age.”

He argued on the basis of that note that as there was no evidence that the prosecutrix physically resisted and that as there was evidence that she did at the relevant time know about and understand the nature of sexual intercourse, and realized that sexual intercourse by the accused with her was a wrong thing, a finding of non-consent was not open to the court.

I rejected such proposition. In Rex v. Bourke[lxxix]¹⁵ Hood J stated (the underlining is mine):

“The real significance of the use of the word ‘force’ in the definitions of rape is that it is impossible to conclude that connection was had without the consent of the woman unless there was either force or fraud. It may be said to be almost necessary to show force of some kind in order to establish want of consent, but if the absence of consent can be shown to be due to fraud, or to the fact that the woman was asleep, it is not necessary to show force.”

What I conceive is meant by the first part of the above excerpt, which Hood J then proceeded to qualify is that in the generality of cases as a matter of common sense and reasonable inference if no force was used then it follows that there was no resistance, and if there was no resistance then that there was consent. One of the two qualifications mentioned to this general proposition that relating to the woman being asleep, was applicable to the facts of the case then before the court for determination.

In R. v. Howard[lxxx]¹⁶, Lord Parker C.J in delivering the judgment of the Court of Criminal Appeal stated as follows:

“As long ago as 1937 this court drew attention to the point in R. v. Harling. Humphreys J said this: It is desirable for this court to re-state the law, which is not subject to doubt. Upon a charge of carnal knowledge of a girl under sixteen, while such a girl is perfectly capable of consenting, and, as everyone who tries these cases knows, frequently does consent to sexual intercourse, such consent affords no defence to the accused. Where, however, the charge is one of rape, it is necessary that the prosecution should prove that the girl or woman did not consent, and that the crime was committed against her will. The court thinks it as well to repeat that it seems to this court that in the case of a girl under sixteen, the prosecution, in order to prove rape, must prove either that she physically resisted or if she did not, that her understanding and knowledge was such that she was not in a position to decide whether to consent or resist. As Humphreys J pointed out in the passage to which I have referred, there are many girls under sixteen who know full well what it is all about and can properly consent. However, so far as the present case is concerned, this little girl Lucinda was only six, and it would be idle for anyone to suggest that a girl of that age had sufficient understanding and knowledge to decide whether to consent or resist.”

In my view in this excerpt Lord Parker, as in the case of Hood J, was stating a general proposition of common sense that absence of resistance usually means presence of consent, and then proceeded to a qualification. The qualification, different from either of those referred to by Hood J had reference to the facts of the case then before that court for determination, and was plainly not meant to be exhaustive as it does not deal with other obvious alternatives such as drunkenness (R. v. Camplin[lxxxi]¹⁷), sleep (R. v. Young[lxxxii]¹⁸), weak intellect (R. v. Fletcher[lxxxiii]¹⁹) a situation where the age of the girl was such that any resistance would have been futile (R. v. Harling[lxxxiv]²⁰), or where for any other reason resistance would have been of no avail (see R. v. Lang[lxxxv]²¹). Such proposition is treated in Halsbury 4th ed. vol. 11, p. 654 (n. 1) as being a proposition as to fact, an evidentiary proposition.

On my understanding, then, of the meaning proper to be attached to the excerpt from the judgment of the Court in R. v. Howard[lxxxvi]²², I declined to be bound by the two alternatives proposed by the defence. In my view there is no closed category of alternatives to physical resistance permitting as a matter of reasonable inference a finding of non-consent.

B. That the failure of the prosecutrix to complain to her sister as soon as possible was evidence of consent

Counsel referred to the following provisions of Sch. 2.2.(1) of the Constitution namely:

“... the principles and rules that formed immediately before Independence Day, the principles and rules of common law and equity in England are adopted and shall be applied and enforced as part of the underlying law ...”

and submitted that by the law “in England” at the relevant time (which he submitted, I think rightly, meant the law of England as it stood judicially then pronounced) failure to make a fresh complaint was evidence of consent, that that was therefore now the law in this jurisdiction, and that the decision of the High Court of Australia to the contrary in R. v. Kilby[lxxxvii]²³ was irrelevant. I did not consider it necessary to decide this question because in my view in all the circumstances of the case including the general immaturity of the prosecutrix, the time that had elapsed before she first got a chance to talk to her sister, the fact that her sister struck her with the broom handle before she had a chance to complain and made her cry, and that after that she was a child playing on the beach, the failure of the prosecutrix to make a fresh complaint was, even if viewed as a matter of law as evidence of consent, or possible evidence of consent, of no significant weight in fact.

C. That the prosecutrix had not said in evidence that she had not consented

I held in respect of this submission that although the prosecutrix (whose evidence was interpreted from Tungak, the language of the New Hanover people) appeared not to have said in express terms “I did not consent” she had given evidence from which absence of consent might reasonably be inferred beyond any doubt, namely her evidence that she “did not want it”, that it had never happened before, that the accused had never interfered with her before, that she was not facing him, that “he did not ask me if he could do this thing to me”, that “I did not know he was going to do this thing to me”, and that “I did not at the time or before it happened say anything from which he might have thought that I was agreeable to intercourse”.

I held that alternatively in any event there was other evidence of non-consent. Such evidence is referred to hereinafter, inter alia, in as a matter of law to found an inference beyond reasonable doubt of non-consent. Such evidence is referred to hereinafter, ‘inter alia’, in respect of the matter of corroboration.

D. That the evidence of the prosecutrix was not corroborated as required as a matter of prudence in the case of a rape charge and also in the case of a child witness, and that the corroboration required by statute (ss. 216 and 219 Criminal Code) in the case of a charge of unlawful carnal knowledge of a girl under the age of twelve years or a charge of unlawful carnal knowledge of a girl under the age of sixteen years was lacking

In respect of this submission I held that there was evidence capable as a matter of law of amounting to corroboration of the evidence of the prosecutrix as to sexual intercourse including penetration, this being the evidence of what was disclosed by the physical examination of the prosecutrix by Dr. John Mako, and the evidence of her sister Aini as to the blood on the sheets and elsewhere and the prosecutrix’s difficulty in walking the following day. I held that the prosecutrix’s evidence of the identity of the offender as the accused was corroborated by the fact that the offence occurred in the accused’s house where on the evidence of Aini he appeared to be the only male residing and by the evidence of Sergeant Jamaney which established that, though the accused stood to a considerable degree ‘in loco parentis’ to the prosecutrix, he had at no time reported to the police or caused to be reported that she had been sexually assaulted by anyone else or at all. I held that the prosecutrix’s evidence amounting to evidence of non-consent was corroborated by, collectively, her youth (no more than twelve), her virginity before intercourse and her injuries received during intercourse, all attested to by Dr. Mako, her physical immaturity as attested to by the same witness and confirmed by her appearance in court and in the witness box, her general immaturity as evident in the witness box, and the age of the accused “vis-à-vis” that of the prosecutrix.

In respect of the second charge I held that as the only witness whose evidence of age capable of or worth being regarded was Dr. Mako his evidence was, though convincing, insufficient in that it required corroboration under the provisions of s. 219 of the Criminal Code and that such insufficiency brought into operation the provisions of s. 92 of the Evidence Act of 1975 which provides as follows:

“In any proceeding, if the court does not consider that there is evidence or insufficient evidence to determine the age of a person that court having seen that person, may itself determine the question.”

I further held, as a matter of law, having seen the prosecutrix, that her appearance was such as to warrant a determination beyond any reasonable doubt, that she was under the age of sixteen years.

Overall, I rejected the defence submission that there was no case to answer and the alternative submission that the case was so tenuous that it would be unsafe and unsatisfactory for it, so to speak, “to go before the jury”.

Counsel for the defence thereupon moved for a declaration of mistrial. In support of this he referred to a number of matters.

Counsel for the defence submitted that the trial had not been conducted, as required by s. 59 of the Constitution, upon the principles of natural justice in that the court had not been seen to act fairly, one of the requirements of natural justice prescribed by sub-s. (2) of s. 59. He said, and I quote, that “the trial so far has been one fraught with difficulties which the court no doubt with the best intentions has sought to overcome” but that “in so seeking the court may have given the impression to a detached observer and also to the accused that the court was not acting fairly”. He referred to the principle that justice must not only be done but must be seen to be done and said, rightly, that this meant not only through the eyes of the public and others but through the eyes of the accused. He said that though he was not submitting that the court was mistaken in any of the courses it had adopted, considered individually, when considered collectively its endeavours to ascertain the facts may well have given the impression that the court was not acting fairly and that the right of the accused to have proceedings conducted in a regular and therefore proper manner had been sacrificed. He agreed, upon my query, that the court had observed in the formulation, substance and manner of asking of the questions it had asked the same restrictions as would have been proper to impose upon prosecuting counsel but said that as the effect of them overall was, as it had turned out, that they had brought to light material damaging to the accused they would have been likely to have given the impression that the court was helping the prosecution. He added that it had been evident that without the intervention of the court the prosecution would have been unable to establish a case, and that this must add to the impression that the court was acting in aid of the prosecution and therefore unfairly towards the accused, and tend to lose for the court the respect of the community, and to make the accused feel that he had not had a fair trial.

I rejected the motion for a declaration of mistrial, and my reasons were as follows. It seemed to me that counsel for the defence in his submissions had paid attention only to the second part of the maxim aforementioned and had overlooked the first, also the provision in s. 59(2) of the Constitution which, in effect, requires a court to act fairly as well as to be seen to act fairly. A court is required to perform the sometimes difficult tasks of achieving both objectives. A criminal trial involves more than the interests of the accused person; it involves also the interests of the community and the justice and fairness called for are justice and fairness as between the accused and the community. This can best be served by the court having before it in the end as far as possible all relevant and admissible evidence. And I did not think that any number of individually unexceptionable attempts by a court to assist towards the realization of this ideal situation could ever properly be regarded as giving the appearance of unfairness to an accused, especially at a point not at the end of the trial but at the end only of the prosecution case and before the defence case, even where, as here, the net result at that point was a strengthening of the prosecution case.

The foregoing were conclusions in my view borne out by the general tenor of the reported decisions relating to the questioning of witnesses by the trial judge and for that reason, and because such questioning was the subject matter of the greatest emphasis in his submission by counsel for the defence, I shall shortly, deal in some detail with that aspect of the matter.

Before doing so I would express the opinion that a real and serious danger in this particular case of the court losing the respect of the community would have arisen had the court appeared so impotent or shackled as to have been unable to make any effective contribution to the ascertainment of the truth in the situations which arose and which have been herein discussed.

The cases on the subject of questioning of witnesses by a trial judge appear in the main to deprecate intervention by the judge in the examination or cross-examination of witnesses but it is clear upon an examination of these cases that what is being deprecated is unnecessary intervention, or intervention which led or may have led to an unjust result, as in R. v. Hircock[lxxxviii]²⁴ where it was held that the Court of Criminal Appeal will intervene if the judge actively and positively obstructs counsel in the doing of his work, as in R. v. Hulusi and Purvis[lxxxix]²⁵ where none of the defence witnesses was allowed by the judge to give his evidence-in-chief without interruption (see p. 386) and in the situations referred to in the case of R. v. Hamilton[xc]²⁶ (referred to in R. v. Hulusi and Purvis[xci]²⁷) where the following sorts of interruptions are referred to as objectionable, namely:

1. “those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree”;

2. “where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence”; and

3. “where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.”

Defence counsel relied in particular on the case of Jones v. National Coal Board[xcii]²⁸. In that case the intervention of the trial judge had the result that no sufficient primary facts were elicited to enable the appellate court to determine the issues as to liability and it was therefore necessary to order a new trial. The judgment of the court, read by Lord Denning, contains strictures (pp. 63, 64) against a judge conducting “an investigation or examination on behalf of society at large”. It is, however, stated that “a judge is not a mere umpire” and that “his object, above all is to find out the truth and to do justice according to law”. The judgment goes on to say that (p. 63) “justice is best done by a judge who holds a balance between the contending parties without himself taking part in their dispute”. No doubt the final statement above-mentioned is true as a generality, but not always. It pre-supposes the involvement of counsel whose seniority and standing are commensurate with the gravity of the charge (in a criminal case) and equal to all the exigencies that may arise in the trial, a situation sometimes not met with in this jurisdiction at the present time. The instant case is an example of a case in which justice would not have been best done by non-intervention of the trial judge in the “dispute”. It was by intervention not non-intervention that the truth was disclosed. It is worthy of note that in the case of R. v. Hulusi and Purvis[xciii]²⁹ where the interference which was condemned took place in the presentation of the defence case, the appellate court thought fit to indicate that the appellants were represented at the trial by “an experienced member of the Bar” (p. 381) and in the case of R. v. Hamilton[xciv]³⁰ where a like interference occurred that counsel at the trial were “experienced counsel”.

It should be noted, also, that Jones v. National Coal Board[xcv]³¹ was a civil case in which, as the court pointed out (p. 64), “a judge is not allowed to call a witness whom he thinks might throw some light on the case, but must rest content with the witnesses called by the parties”. A judge in a criminal trial, on the other hand, does have power to call a witness not called by either the prosecution or the defence, without their consent, if he considers that course is necessary in the interests of justice. (Halsbury 4th ed. vol. 11, p. 172, par. 296, though note the High Court in Richardson v. The Queen[xcvi]³²). It would seem to follow that the judge has a duty and the scope to take more positive steps to ensure the ascertainment of the truth in a criminal trial than in a civil, and that the observations in Jones v. National Coal Board[xcvii]³³ about the undesirability of intervention by the trial judge must be modified accordingly when applied to criminal trials.

Two years before the case of Jones v. National Coal Board[xcviii]³⁴ in R. v. Williams[xcix]³⁵ the Court of Criminal Appeal (Lord Goddard C.J, Hilbery and Pearce JJ):

“Held, dismissing the appeal, that if a judge thinks that a case has not been thoroughly explored, he is entitled to put as many questions as he likes to witnesses. However, here the case was being conducted by able members of the Bar, who could be trusted to conduct both the prosecution and defence fully and fairly, and, with all respect to the judge, it was a pity that he had asked as many questions as he had done. But it was impossible to say that there had been any miscarriage of justice and there were no grounds upon which the court could interfere.”

In R. v. Perks[c]³⁶, a successful appeal on the ground, inter alia, that the nature and number of the judge’s interruptions during the appellant’s examination-in-chief and his counsel’s final address were such as to prevent a fair trial, it was:

“Held, allowing the appeal, it was axiomatic that the judge had an over-riding duty to secure a fair trial. Clearly he was entitled to intervene at any stage if he judged it necessary to the proper conduct of the trial. But when interventions would appear to a dispassionate onlooker to favour one side it behoved him to be cautious. P. was asked about 700 questions in examination—in-chief, 147 of them by the judge. The matter should not be decided simply by reference to the number of questions: there might be cases where it was legitimate for the judge to ask many questions though they would be rare. What mattered was the quality of the interruptions. In the present case there were hostile interruptions and the judge closely cross-examined P.... It was the duty of the prosecuting counsel, and not the judge to cross-examine. If during or after cross-examination the judge felt that questions were not asked which should be asked he was free to intervene within the limits of propriety.”

Aided by my recollection of these authorities and upon the considerations now set out herein I was of opinion that there had been no injustice done to the accused and no unfairness, nor any appearance of injustice, unfairness, bias, or hostility to the accused on the part of the court. I accordingly ruled, as already indicated, that there had been no mistrial.

The accused then elected through his counsel to call no evidence, to give no evidence himself and to make no statement.

In the final analysis I would have been satisfied beyond reasonable doubt on the evidence of the prosecutrix alone of the existence of all constituent elements of each offence charged (including the element of non-consent in the first charge) except the age element of the second count in the indictment. However, I found as to all elements except that one, which I have already dealt with, the evidence of the prosecutrix well and sufficiently corroborated, on the various bases referred to earlier in this judgment. I was satisfied beyond any reasonable doubt of the guilt of the accused on the count of rape and also that he had had unlawful carnal knowledge of the prosecutrix a girl under the age of sixteen years.

I think I should add an additional word about the question of non-consent. As to the absence of evidence from the prosecutrix indicating physical resistance I was satisfied from the immaturity of the prosecutrix physically and otherwise, and her evidence to the effect that the accused had not interfered with her sexually before, that she would have had at the relevant time no desire for sexual intercourse with the accused. Also she would have considered sexual intercourse between them to be wrong. On her evidence he did not ask her to allow him to have sexual intercourse nor was she expecting sexual intercourse. I was satisfied that the question of her consent was one with which the accused was not concerned, and that his determination and impatience as indicated by her injuries would have been such that she would have had no time, when she realized what was happening to sufficiently think about the matter or determine what attitude she should take, though her understanding and knowledge might in other circumstances have allowed her to do so. To the extent that she might have been able to think about it the dominance and authority, physical and psychological, of the accused arising from the fact that he was a man and she was a child in his household and care, would have been further inhibitive of rational consideration. If there was indeed no physical resistance on her part (and it was hard to envisage her suffering the injuries she did in utter passivity) then I was satisfied that it was non-resistance arising from confusion, or uncertainty or submission falling short of consent. It by no means follows that a mere submission involves consent (R. v. Day[ci]³⁷; R. v. Lang[cii]³⁸). I was satisfied that she would at the relevant time have had not the dimmest notion of what she should do or could do in the predicament in which she found herself.

ADDENDUM:

Section 30 of the Criminal Procedure Act of 1889 (N.G.) provides in effect that it is lawful for a judge of the National Court at any stage of a trial to summon and examine any witness whose evidence he shall consider essential for a just decision.

Section 30 also provides in effect that a judge may examine as a witness any person who may be within the precincts of the court, although such person may not have been bound over or summonsed to attend as a witness or may not be willing to give evidence. Section 12 of the New South Wales Evidence Act 1889 as amended to date contains a similar provision except that such provision expressly extends to the production of documents:

“... shall be compellable to give evidence and produce documents then in his possession ...”

In my view both provisions are so far as they go merely declaratory of inherent powers of the court which include a power to obtain documents actually in court in the absence of notice to produce, or consent, and, save in the case of allowable exceptions, to deliver them to the prosecution. This view in my opinion is supported in Whigmore, pars. 2190 and 2191, notably at p. 69: also pars. 1210(4), 2200 and 2219 referred to in the address by Moffit J of the New South Wales Supreme Court at p. 3 of Seminars on Evidence published by the Law Book Company Limited for the New South Wales Bar Association. (See pp. 13 and 17). It was on the basis of an inherent power in the court that I ordered defence counsel to relinquish the “record of interview” to the court.

Verdict: guilty of rape, and of carnal knowledge of a girl under 16.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: Warner Shand Wilson & Associates.

[lxv][1896] 2 Q.B. 167.

[lxvi][1896] 2 Q.B. 167.

[lxvii][1806] EngR 156; 7 East, 357 at p. 358; [1806] EngR 156; 103 E.R. 138 at p. 139.

[lxviii][1883] UKLawRpCh 103; (1883) 23 Ch.D. 387 at pp. 405, 406.

[lxix] (1944) 109 JP. 12 D.C.

[lxx][1965] VicRp 72; [1965] V.R. 563 at p. 565.

[lxxi] (1944) 109 JP. 12 D.C.

[lxxii] (1944) 109 JP. 12 D.C.

[lxxiii] (1944) 109 JP. 12 D.C.