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Townsend v Oika [1981] PNGLR 12 (6 March 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 12 - Peter Townsend v George Oika 

[1981] PNGLR 12

SC191

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PETER TOWNSEND

V

GEORGE OIKA

Waigani

Greville Smith J Pratt J Miles J

5-6 December 1980

6 March 1981

CRIMINAL LAW - Particular offences - Assault - Evidence indicating assault of sexual nature - Corroboration - Whether rules relating to apply - Criminal Code, s. 353.

CRIMINAL LAW - Evidence - Credibility - Corroboration - Common assault - Evidence indicating assault of sexual nature - Need for corroboration - What constitutes corroboration - “Supportive evidence” - Need to advert to rule requiring corroboration - Need to record advertence to rule - Criminal Code, s. 353.

CRIMINAL LAW - Appeals - Appeal against conviction - Miscarriage of justice - Assault of sexual nature - Need for corroboration - Failure to advert to rule requiring corroboration - Failure to record advertence to rule.

INFERIOR COURTS - Practice and procedure - Offences involving elements of sexual nature - Need for corroboration - Magistrate to state and record dangers of convicting on uncorroborated evidence, what constitutes corroboration in particular case, or what in absence of corroboration makes it safe to convict.

Where a charge of common assault contains elements of a sexual nature the common law rules relating to the need for corroboration apply.

Montgomery v. Counsell; Ex parte Counsell [1956] St. R. Qd. 120; and

Thomas Arthur McCallum v. Gregory Buibui [1975] P.N.G.L.R. 439 followed.

The applicable rule requires the court to advert to the danger of convicting on the evidence of the prosecutrix alone, unless that evidence is corroborated, in some material particular, by other evidence, from an independent source, which renders it probable that the offence charged has been committed by someone and that it was the accused who committed it.

Semble:

The need for corroborative evidence may be satisfied by significant evidence, falling short of corroboration at law, of such a nature as to be confirmatory or supportive of the evidence of the prosecutrix in some significant way as to her allegation that she has been assaulted.

Where the rules relating to corroboration need to be applied account should be taken of the presence or absence of corroboration and the failure to note this in the judgment is fatal to conviction unless the appeal court can be satisfied that no miscarriage of justice has occurred.

Thomas Arthur McCallum v. Gregory Buibui [1975] P.N.G.L.R. 439 applied.

As a matter of practice a magistrate in all cases having a sexual element, should state and record, when the evidence and the addresses are concluded, that he understands the dangers of convicting upon the uncorroborated evidence of the woman or girl concerned and should then proceed to consider what the verdict should be with those dangers in mind. If he finds there is corroboration, he should, when giving judgment, state and record what constitutes such corroboration, and if there is no corroboration and he convicts, he should state what it was that, in the absence of corroboration, in the particular case, led him to the conclusion that it was safe to convict.

Held:

Accordingly, an appeal against conviction on a charge of assault under s. 353 of the Criminal Code should be allowed, where there were allegations of a sexual nature and where the magistrate and counsel for both prosecution and defence had failed to advert to the need for corroboration at all, and where there was no corroborative or “supportive” evidence.

Appeal.

This was an appeal against a judgment and order of the National Court dismissing an appeal against conviction by the District Court on a charge of common assault under s. 353 of the Criminal Code.

Counsel:

I. Molloy, for the appellant.

L. Gavara, for the respondent.

Cur. adv. vult.

6 March 1981

GREVILLE SMITH J:  This is an appeal by Peter Townsend against a judgment and order of the National Court dismissing his appeal from a conviction before the District Court on a charge of common assault. Such charge was brought under s. 353 of the Criminal Code, the relevant part of which is as follows:

“353.   COMMON ASSAULTS

Any person who unlawfully assaults another is liable on summary conviction to a fine of K200.00, inclusive of costs, and in default of payment to imprisonment with hard labour for six months unless the fine and costs are sooner paid, or to imprisonment with hard labour for six months in the first instance.”

There were three grounds of appeal before this Court. Two of them in my opinion have no substance and I do not propose to refer to them further. The remaining ground was that his Honour the learned trial judge erred in law in holding that the conviction should not be quashed despite the magistrate’s failure to bear in mind the danger of convicting upon uncorroborated testimony.

Relevant excerpts from his Honour’s judgment relating to facts and evidence are as follows:

“Before the District Court the Police case was as follows. The appellant is the Provincial Works Manager based at Goroka. One Saturday morning, the 24th of May, he went to his office. Between 12 noon and 12.20 pm he entered an office where the victim Lucy Kumel was working. She is an accountant machinist; she was alone in the office at the time.

After some conversation between them about work matters, the following incident occurred, in the words of the victim Lucy:—

‘He kept on staring at me, then he came close to me on my right, and started tapping my hair. I did not have bad feelings. Then he held my two hands and pulled them and holding my shoulders and I said “What are you trying to do?”.

He then pulled me out of the chair to the open space, and he started to touch my breasts, and my private part, and I told him I would tell Peter Harold; then he left me and he went out to his car and left.

I went to see my boss, he was not there. I then told Thomas about the incident and we told Peter and then we reported the matter to the police.’

Lucy Kumel testified before the District Court. She said she had been at work that day since 9.30 am; she had been employed there for about a month. She believed the time was 12.20 pm when the appellant came in, because she asked him the time, before the assault commenced. She demonstrated to the court what had happened to her. She said the appellant ‘kept holding me tight on to him’, while she was calling out. She thought he held her thus for about five to eight minutes, in the course of which, she said, he ‘tried to put me on the floor with his hands’. After the appellant left, she said ‘I cried, as I felt bad’. She was at the police station by about 1 pm. The police had opened that in the course of the assault, her pants had been pulled down to her knees, but the witness made no mention of that.

The other police witnesses were two of her fellow workers, Messrs. Thomas Auis and Avi Boroa. They had also been working at the office premises that morning but had gone to lunch at 12 noon. At the time they left, they spoke briefly with the victim. Later, at their house not far away, the victim came crying to them.

The appellant also testified. He said he arrived at the office that morning, at about 11.30 am. He worked in his own office for a while, then took some files to the room where the victim was working alone; he said he had a brief conversation with her, and then left. He said that Lucy had asked him the time, and it was exactly 12.10 pm, and he stayed only three to four minutes in the room with her. He denied any assault upon Lucy Kumel. He arrived home some five minutes walk from the office in time to hear the news at 12.30 pm. In this account, he was supported by his wife, who said he was home by 12.21 pm.

The magistrate found that the alleged assault had in fact taken place. It is clear that he believed Lucy Kumel’s account and disbelieved the appellant. They were both testifying before him and he was of course in a position to assess their truthfulness and accuracy of recall.

This Court is not.”

On the matter of corroboration Lord Hailsham in Reg. v. Kilbourne[xiv]¹ said:

“In my view, there is no magic or artificiality about the rule of practice concerning corroboration at all. In Scottish law, it seems, some corroboration is necessary in every criminal case. In contrast, by the English common law, the evidence of one competent witness is enough to support a verdict whether in civil or criminal proceedings except in cases of perjury (cf. Hawkins’ Pleas of the Crown, vol. 4, c. 46, s. 2; Foster’s Crown Cases (1762) 233). This is still the general rule, but there are now two main classes of exception to it. In the first place, there are a number of statutory exceptions.”

After stating the statutory exceptions Lord Hailsham continued as follows[xv]²:

“But side by side with the statutory exceptions is the rule of practice now under discussion by which judges have in fact warned juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused, or confirming the disputed items in the case. The earliest of these classes to be recognised was probably the evidence of accomplices ‘approving’ for the Crown, no doubt, partly because at that time the accused could not give evidence on his own behalf and was therefore peculiarly vulnerable to invented allegations by persons guilty of the same offence. By now the recognised categories also include children who give evidence under oath, the alleged victims, whether adults or children, in cases of sexual assault, and persons of admittedly bad character. I do not regard these categories as closed. A judge is almost certainly wise to give a similar warning about the evidence of any principal witness for the Crown where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence (cf. Reg. v. Prater[xvi]³, Reg. v. Russell[xvii]⁴). The Supreme Court of the Republic of Ireland has apparently decided that at least in some cases of disputed identity a similar warning is necessary (People v. Casey (No. 2)[xviii]⁵). This question may still be open here (cf. Reg. v. Williams[xix]⁶; Arthurs v. Attorney-General for Northern Ireland[xx]⁷).

Since the institution of the Court of Criminal Appeal in 1907, the rule, which was originally discretionary in the trial judge, has acquired the force of a rule of law in the sense that a conviction after a direction to the jury which does not contain the warning will be quashed, unless the proviso is applied: see Rex v. Baskerville[xxi]⁸; Davies v. Director of Public Prosecutions[xxii]⁹ per Lord Simonds L.C.

However, it is open to a judge to discuss with the jury the nature of the danger to be apprehended in convicting without corroboration and the degree of such danger (cf. Reg. v. Price (Herbert)[xxiii]¹⁰) and it is well established that a conviction after an appropriate warning may stand notwithstanding that the evidence is uncorroborated, unless, of course, the verdict is otherwise unsatisfactory: Rex v. Baskerville[xxiv]¹¹. There is, moreover, no magic formula to be used: Reg. v. Price (supra).”

The learned judge of the appellate court at first instance took the view that there was no corroboration to be found in the evidence before the District Court. With respect I agree with his Honour’s view on this. If there were, as a matter of practicality, a need for corroboration in this case, it was corroboration of the prosecutrix’s evidence that she had been assaulted. No real question as to the identity of the assailant, if she had indeed been assaulted, arose on the facts. Whilst evidence from a witness or witnesses other than the prosecutrix of a “fresh complaint” is admissible, in a case like this, it cannot amount to corroboration. In R. v. Whitehead[xxv]¹² where the accused was charged with unlawful carnal knowledge of a girl under the age of sixteen years, it was suggested that her evidence might have been corroborated by the fact that she told her mother about it afterwards. Lord Hewart said:

“In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty-five times in order to get twenty-five corroborations of it.”

See also R. v. Christie[xxvi]¹³.

The making of a recent complaint is not in itself evidence of the facts stated in the complaint. In Lovell’s case[xxvii]¹⁴ Lord Chief Justice Hewart said:

“In the case of Lillyman[xxviii]¹⁵, it was laid down that, ‘Upon the trial of an indictment for rape, or other kindred offences against women or girls, the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of such complaint, may, so far as they relate to the charge against the prisoner, be given in evidence on the part of the prosecution, not as being evidence of the facts complained of, but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as negativing consent on her part.’ Mr. Justice Hawkins, delivering the judgment of the full Court, consisting of Lord Russell of Killowen, Baron Pollock, Mr. Justice Hawkins, Mr. Justice Cave and Mr. Justice Wills, said, at page 170 of the report, with regard to such evidence: ‘It is necessary, in the first place, to have a clear understanding of the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complains.’ And again at page 178 the learned judge added: ‘It has been sometimes urged that to allow the particulars of the complaint would be calculated to prejudice the interests of the accused, and that the jury would be apt to treat the complaint as evidence of the facts complained of. Of course, if it were so left to the jury they would naturally so treat it. But it never could be legally so left; and we think it is the duty of the judge to impress upon the jury in every case that they are not entitled to make use of the complaint as any evidence whatever of those facts, or for any other purpose than that we have stated.’ Those words, in the opinion of this Court, clearly state the legal position.”

A distressed condition can amount to corroboration but except in very special circumstances it should be given very little weight.

In R. v. Luisi[xxix]¹⁶ the Court of Appeal in England allowed an appeal on the view that the significance of the girl’s distress was over-emphasized and said that though there may be cases where there can be no suggestion that the distress was feigned, in normal cases juries should be warned that, although it may amount to corroboration they must be fully satisfied that there is no question of it having been feigned. In R. v. Knight[xxx]¹⁷ Lord Parker said as follows:

“Counsel on the appellant’s behalf, points out that this was a very different case to R. v. Redpath[xxxi]¹⁸, to which the assistant recorder was referred at the trial. There is no doubt that the facts there, as I endeavoured to point out in giving the judgment of the court, were very special facts. There the girl emerged from a moor or common land in a matter of seconds after the appellant, the man alleged to be concerned, had left. She was not going to make a complaint at that moment, and she had no idea that she was being observed. In fact an independent bystander saw her emerge in an extremely distressed condition. The court there had no hesitation in saying that the evidence of that independent bystander was capable of amounting to corroboration. In giving judgment, I said:

‘Of course the circumstances will vary enormously, and in some cases quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother’s evidence as to the girl’s condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress.’

Despite what was said in that judgment, there has been a tendency since then for judges to leave to the jury almost every case where a complainant is seen to be in a distressed condition, and in several cases since R. v. Redpath[xxxii]¹⁹ and, in particular, two cases to which we have been referred, R. v. Okoye[xxxiii]²⁰ and R. v. Luisi[xxxiv]²¹, I endeavoured to stress that the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that, except in special circumstances, little weight ought to be given to that evidence.

Counsel for the appellant complains here that the assistant recorder in dealing with the distress shown by the girl, and indeed her gesture—it seems unnecessary to distinguish between the two—did not warn the jury that they ought to attach but little weight to it, and in particular should be satisfied that the girl was not putting on an act. In fact, the assistant recorder had had the submissions made by the defence and prosecution on the question of corroboration before the jury because they were not asked to retire, and they must have known full well the relevant principles to apply. It is true that when the assistant recorder dealt with this point in his summing-up, he did not warn them that they must be satisfied that the girl was not putting on an act, but in fact he went further by pointing out that she had said that, until she saw her father, she was not a bit distressed at all—in other words, the incident had not distressed her, but that any distress that she showed was because she was afraid her father would disapprove of her having been with this man. She said ‘Before I saw my daddy I was not frightened’.”

Mr. Gavara has submitted that the common law in England relating to corroboration is, to use an expression from Sch. 2.2 to the Constitution, exception (a), “inappropriate to the circumstances” of Papua New Guinea. He did not develop this theme by submitting why and, whilst preserving an open mind for future occasions, and fuller argument, I myself am presently unable, unaided, to see why this should be so. Such authority as there is in this jurisdiction in favour of such a proposition is of persuasive authority only, and with due respect I remain unpersuaded. It is true that from time to time there has been criticism of the rule relating to the requirements of corroboration in its present form, as laid down in R. v. Baskerville[xxxv]²². That rule is in my view well stated, inter alia, in the words of the learned author of An Introduction to the Law of Evidence (for Police Officers), par. 17.24, by Wells—Government Printer, South Australia as follows:

“It is an established practice, where a defendant is charged with an offence of a sexual nature, for the trial judge to warn the jury that it is unsafe to convict on the evidence of the alleged victim, or subject, or the offence (called in this context, the prosecutor or prosecutrix) unless that evidence is corroborated, in some material particular, by other evidence, from an independent source, which renders it probable that the offence charged has been committed by someone, and that it was the accused who committed it. A magistrate, when dealing with such offences, must bear in mind a similar warning. Speaking generally, the warning does not imply that, in the absence of corroboration, an acquittal must necessarily follow. But it does mean that the defendant should not, in the absence of corroboration, be convicted on the evidence of the prosecutor or prosecutrix, standing alone, unless the jury or magistrate, bearing in mind the warning, and after careful scrutiny of his or her evidence, are or is thoroughly convinced of its substantial truth.” (Emphasis mine.)

In the English edition of Cross on Evidence (4th ed., 1974), pp. 184, 185, the learned author says as follows:

“ ‘Corroboration’ is not a technical term, it simply means ‘confirmation’ or ‘support’. But, in all cases in which it is required in law or practice, it must take the form of a separate item of evidence implicating the person against whom the testimony is given in relation to the matter concerning which corroboration is necessary. This means that many things that show, or might be thought to show, that a witness is speaking the truth do not corroborate him in law.”

In an article in 1980 Crim. Law Review at p. 362 Andrew B. Clarke LL.B., B.C.L., A.K.C. appears to contend for “abandoning the term ‘corroboration’ altogether and allowing the members of the jury to use any relevant evidence to help to support testimony which they feel needs support, having been apprised of its dangers.”

And in the monumental American treatise, Wigmore on Evidence (3rd ed., 1978), vol. VII, par. 2061, p. 354 the following appears:

“The fact is that, in the light of modern psychology, this technical rule of corroboration seems but a crude and childish measure, if it be relied upon as an adequate means for determining the credibility of the complaining witness in such charges. The problem of estimating the veracity of feminine testimony in complaints against masculine offenders is baffling enough to the experienced psychologist. This statutory rule is unfortunate in that it tends to produce reliance upon a rule of thumb.”

It is well to bear in mind that the foregoing criticisms relate not to the concept that there are special dangers in sexual cases in convicting upon the unsupported evidence of the woman or girl concerned, and that to ensure justice a court in an appropriate case must fully appreciate their nature, and have them well in mind, but only as to the best means of guarding against such dangers. I think it is desirable in this judgment to dwell to some extent upon the nature of such dangers. I do this for convenience by reference to an excerpt from an article by Glanville Williams (1962) Crim. L.R. 662 at pp. 662, 663, entitled “Corroboration—Sexual Cases” from which I quote at length.

“On a charge of a sexual offence, such as rape, indecent assault, or homosexual offence, it is the practice to instruct the jury that it is unsafe to convict on the uncorroborated evidence of the alleged victim. There is sound reason for this, because sexual cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite, or simply a girl’s refusal to admit that she consented to an act of which she is now ashamed. Of these various possibilities, the most subtle are those connected with mental complexes. Wigmore, who recites a number of instances where women have brought false sexual charges against men, explains one of the motivations as follows:

‘The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex-incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.’

In general, the requirement of corroboration in sexual cases follows the same rules as for accomplice evidence, though there are one or two differences of detail. Comparing the two corroboration rules, the Court of Criminal Appeal on one occasion suggested that the argument for requiring corroboration in the case of sexual complainants was weaker than in the case of accomplices. ‘This court cannot accept the contention that the evidence of a girl, the victim of the offence, is on the same plane with that of the evidence of an accomplice. The objection in such a case as this is not on the grounds of complicity, but because the case is one of an oath against an oath.’ Surely the reason for the objection is stronger than this. There is no general requirement that the jury should be warned that it is dangerous to convict where the evidence is in a position of oath against oath. The distinctive reason for the warning in sexual cases is that experience shows that the complainant’s evidence may be warped by psychological processes which are not evident to the eye of common sense. The danger of convicting on the evidence of an accomplice who is trying to minimise his own part in the affair is obvious even to an unintelligent person; in ordinary cases, a word from the defendant’s counsel is enough to bring it to the attention of the jury as a matter for serious consideration. In sexual cases, on the other hand, the danger is usually not obvious. Moreover, there is a tendency in sexual cases for the proceedings to start with a prejudice against the defendant, if the complainant is a girl of tender years, whose appearance makes a strong appeal to the sympathy and protective feelings of the jury.”

In the case in respect of which we are now concerned defence counsel at the trial did not assist the magistrate by drawing to his attention the law and practice relating to corroboration and the dangers of convicting upon the uncorroborated evidence of the prosecutrix, or the need in the absence of corroboration for subjecting her evidence to the most careful scrutiny. Nor did the prosecuting police officer whose duty also it was to do so. It may be that the magistrate did, through his knowledge of the law, or because of a natural knowledge of human affairs and “the ordinary caution and suspicion which would naturally suggest itself for such charges” (Wigmore (supra), par. 2061), scrutinize the evidence of the prosecutrix with great care. He, as the learned appellate judge at first instance has pointed out, had the advantage, which neither his Honour had nor this Court has had of seeing and hearing her. Yet there is nothing to indicate, in his judgment, or elsewhere, that the magistrate did do so. It may therefore also be that because neither the prosecutor nor learned counsel for the defence raised the matter, or because the offence is one which, unlike for example rape or offences of indecently dealing with girls, is not, upon its definition, a sexual offence, he thought that the law relating to corroboration did not apply. It is, in my view, not without significance that even at the appeal at first instance neither counsel raised the question of corroboration, and that it was left to his Honour the learned appellate judge to do so. His Honour took the view that though this was not upon its definition a “sexual” case, in its essential nature it was, on the facts, one to which the rules relating to the need for corroboration applied. With this, with respect, I agree.

Not only, in my opinion, was there no corroboration in law in the evidence before the court at first instance, but there was also no significant evidence, falling short of such corroboration, of such a nature as to be confirmatory or supportive of the evidence of the prosecutrix in any significant way as to her allegation that she had been assaulted. Neither the early complaint, nor the distressed condition, could in the circumstances of this case constitute supportive evidence, for the very same reasons that neither could, separately or together, furnish corroboration in law.

In addition the trial court would have had very little chance to observe the prosecutrix in the witness box and so to form a reliable impression as to her truthfulness as a witness. Her evidence was short and cross-examination of her was, for whatever reason, meagre, being mainly confined to pinning her down as to the exact time that the assault took place, as the foundation to an “alibi” defence.

In my view the case was clearly the prosecutrix’s word against the accused’s, with nothing additional to reliably indicate who was telling the truth.

With respect to the learned judge of the appellate court at first instance, and to the magistrate, who does not appear to have received from the prosecution or from defence counsel the assistance that he was entitled to expect, in my view, for the reasons I have indicated herein, the conviction was unsafe and constituted a miscarriage of justice. In my view also, at this stage, in the particular circumstances of this case, it is too late for a safe and satisfactory retrial to take place, and I would simply quash the conviction.

I would add that in my view a magistrate in a case such as this, and in all sexual cases, should state and record, when the evidence and the addresses are concluded, that he understands the dangers of convicting upon the uncorroborated evidence of the woman or girl concerned and should then proceed to consider what the verdict should be with those dangers in mind. If he finds there is corroboration, he should, when giving judgment, state and record what constitutes such corroboration, and if there is no corroboration and he convicts, he should state what it was that, in the absence of corroboration, in the particular case, led him to the conclusion that it was safe to convict.

PRATT J:  I agree with the reasons and conclusions of Greville Smith J. and add the following matters by way of emphasis only:

Clearly the case, although charged as assault, was one which contained a sexual element and thus required corroboration (Montgomery v. Counsell; Ex parte Counsell[xxxvi]²³ and Frost C.J. in Thomas Arthur McCallum v. Gregory Buibui[xxxvii]²⁴. I consider this rule of the common law appropriate to the circumstances of Papua New Guinea and have not heard on this appeal, or elsewhere for that matter, any reasons which would substantiate a submission that it was inappropriate. The Court’s attention was drawn by counsel for the State to two previous cases where Prentice C.J. and Pritchard J. had separately considered the necessity or otherwise of corroboration in relation to evidence given by accomplices, and drew an analogy between evidence by accomplices and evidence involved in sexual cases. I doubt whether the particular judges concerned would be prepared to extend their views on corroboration in relation to accomplices to cases involving sexual offences and indeed Pritchard J. made no mention of his earlier published views on corroboration in relation to accomplices when he was dealing with a sexual crime whilst a member of the Supreme Court in the appeal case Bernard Touramasong v. The State[xxxviii]²⁵. Although the judgment in this case was a joint one, his Honour has certainly, by implication, accepted the necessity for corroboration in a charge of rape. I have not been persuaded either by what I have heard from Mr. Gavara, or from what I have read independently in the more recent legal literature which argues forcefully for an abandonment of the rule in relation to sexual offences against women, that such abandonment should occur either in Papua New Guinea or elsewhere.

In The State v. Titeva Fineko[xxxix]²⁶, the then Chief Justice Sir William Prentice says as follows:

“In Papua New Guinea, the law permits conviction on the evidence of an accomplice alone. Some of the decisions under the English Common Law as to the evidence of accomplices, and in particular the way in which the tribunal must be directed, I consider may be regarded as inappropriate to Papua New Guinea conditions. The situation in Canada is interestingly referred to in R. v. Joseph[xl]²⁷. In Papua New Guinea the evidence of accomplices, in the experience of the judges, is usually given not in a spirit of vindictiveness; but with a sense of justice very much in mind. It is more than possible that in many cases, it is done also with an intent to avoid a pay-back upon the unconvicted man’s family or clan.”

Sir William of course was speaking after some eight years experience as a judge in this country and had a highly developed sense of perception in evaluating the truthfulness or otherwise of witnesses. I find however that I am unable to agree with his Honour, perhaps because the experience of the judges is not quite the same as the experience of those who have practised at the bar of this country for many years. There are certainly those occasions mentioned by his Honour which do arise and in such instances there may well be no danger in convicting. Indeed in the paragraph immediately following the one which I have quoted above, Sir William said[xli]²⁸: “Nevertheless, I remind myself that it is regarded as dangerous to convict on an accomplice’s evidence alone.” His Honour has thus reminded himself of the dangers but nevertheless has accepted the uncorroborated evidence of the accomplice. With respect, I consider this approach not only proper but can find nothing inappropriate in the adoption of such rule of practice to the circumstances of the country.

A similar approach to that of the Chief Justice was taken by Pritchard J. in The State v. Joseph Tapa[xlii]²⁹ where he deals extensively with the question of whether or not it is dangerous to convict on the uncorroborated evidence of an accomplice. The conclusion his Honour reaches is that such rule is not applicable to the circumstances of Papua New Guinea.

If their Honours are saying that the requirement to direct on corroboration is neither a rule of law nor a rule of practice, then I regret I cannot agree with either Sir William Prentice or Pritchard J. that such a rule is inappropriate to the circumstances of Papua New Guinea, but an exposition of my reasons for holding to the contrary should more appropriately be reserved for an occasion which deals specifically with the particular problem of corroboration in relation to the existence of accomplices.

Returning now to the case under appeal, it is quite obvious that at the time of the hearing before the magistrate, no-one gave any thought to the possibility that corroboration might be either a desirable or necessary factor to be put in the balance. Even on the appeal before Kearney Dep. C.J., the matter was not raised by either counsel and only came to light when his Honour himself expressed some doubts on the matter. With respect to his Honour, I consider the doubts were well justified. Corroboration in this type of case is even more important than that in the case of an accomplice. The reasons for the rule have been dealt with on many occasions and I do not propose to restate them here. As a result of the oversight a number of matters were not raised at the hearing and the magistrate did not approach his task with the necessary warnings in mind. Had he given consideration to the necessity for finding evidence of a corroborative nature, then I would expect some mention of the fact to appear in his judgment. There are no special words required, no magical formula as has been alleged by Professor Glanville Williams, but just some indication that in the process of deliberation and sifting of evidence an account was taken of the presence or absence of corroboration. To fail to note such factor in the judgment is fatal to the conviction unless the Appeal Court can apply the proviso. In the case of an appeal to the Supreme Court such proviso is referred to in s. 22(2) of the Supreme Court Act 1975, in the following terms:

“The Supreme Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

I find myself unable to agree with the learned National Court Judge on appeal that in this case no substantial miscarriage of justice has taken place. In my view, the whole of the proceedings and the verdict were not only unsafe and unsatisfactory but the magistrate made a “wrong decision of law” in that he failed to direct his mind at all to the question of corroboration. Where a basic rule of practice has been completely overlooked, it seems to me that any consequent verdict must in the majority of cases lead to a miscarriage of justice. The absence of corroboration goes to the whole crux of the issue for determination by the tribunal and is not just a subsidiary matter. The assault alleged by the complainant was one of a sexual nature and consequently required more than ordinary care and consideration by the presiding magistrate. Unfortunately for him, and the parties, he was lulled into a sense of false security by the approach adopted by prosecutor and defence counsel alike. I do not suggest that such approach was deliberate. To my mind it was simply an oversight, aggravated no doubt by the fact that apparently the charge was originally indecent assault and was then changed to assault on the day the trial commenced. I think this change of tack put everyone off their guard. Because I am of the view that in all the circumstances of the case the verdict is both unsafe and unsatisfactory, and that there was a wrong decision on a question of law, and because I consider these errors have led to a miscarriage of justice, I would uphold the appeal.

I have been somewhat perplexed as to what should be done with the appellant in the event of the appeal being upheld. The Supreme Court has all the power vested in a National Court judge (see s. 7(2) of the Supreme Court Act, to which s. 22(3) of the same Act is obviously subject), and thus the Supreme Court may also utilize the provisions of s. 236(1) of the District Courts Act 1963, and remit the case back to the District Court for rehearing. I would not in all the circumstances of this case suggest such course. Some of my reasons are:

(a)      At this stage in time there appears to be little likelihood of obtaining any corroborative evidence;

(b)      The passage of time will undoubtedly make it difficult for all parties and their witnesses to give accurate evidence;

(c)      To protract the proceedings any longer would seem to me to be neither fair nor just.

I would therefore uphold the appeal, quash the conviction, and direct a verdict of “not guilty” to be entered.

MILES J:  I have had the opportunity of reading the judgments in draft of both Greville Smith J. and Pratt J. I agree with the reasons advanced by their Honours and with the orders proposed. The decision of this Court affirms in all aspects the previous judgment of Frost C.J. in Thomas Arthur McCallum v. Gregory Buibui[xliii]³⁰.

I would add a few words only in relation to the submission by the Public Prosecutor that the common law rules as to corroboration are not appropriate to the circumstances of Papua New Guinea and do not therefore form part of the underlying law of the country pursuant to Sch. 2.2 of the Constitution. Whatever be the soundness of the reasons advanced for rejecting the common law rule as to corroboration of accomplices (evidence of accomplices said to be given from a sense of justice, or in desire to avoid pay-back: The State v. Titeva Fineko[xliv]³¹; or difficulty in understanding, or too many acquittals, The State v. Joseph Tapa[xlv]³²), they do not apply to cases of sexual assault. The views of Prentice C.J. as to corroboration of accomplices differ from his views as to corroboration in sexual cases: The State v. Kewa Kai[xlvi]³³.

As I understood Mr. Gavara’s submission on this aspect, it was confined to the proposition that the rule of common law that a jury should be warned of the danger of convicting on the uncorroborated evidence of a complainant in a case of sexual assault is inappropriate where trial proceeds by judge or magistrate alone and without a jury. The judgment of Greville Smith J. in my view provides a clear answer to that submission. Sometimes trial by jury involves technical and procedural matters which are not appropriate where trial is by judge or magistrate alone (for example see The State v. Leo Nimo and Bai Sindi[xlvii]³⁴) but not all the common law rules relating to the determination of issues of fact fall into this category. For instance, the common law principle that upon a criminal charge the jury must be satisfied of the guilt of the accused beyond a reasonable doubt has been accepted (almost I would think without question) as applicable in Papua New Guinea, even though the tribunal of fact is constituted by a judge and not a jury: for example The State v. John Koe[xlviii]³⁵. In any event the common law rules as to corroboration have developed as a gloss upon that principle and upon the other fundamental principle that a person is presumed innocent until proven guilty according to law. That cornerstone of the criminal law is enshrined in s. 37(4)(a) of the Constitution of Papua New Guinea as one of the basic constitutional rights.

However there is, as Pratt J. has observed, in other countries at the present time, well-articulated criticism of the corroboration requirement particularly as applied to rape cases and in principle to all cases of sexual assault on women. It is claimed that the existing rules discriminate against women, lumping them together with children and criminals. See generally Jocelynne Scutt: “Reforming the Law of Rape: The Michigan Exchange”[xlix]³⁶ and article “The Rape Corroboration Requirement”[l]³⁷. In some of the American States where formerly there could not be a conviction for rape without corroboration (and where there was an extraordinarily low conviction rate by Papua New Guinea, and for what it is worth Australian, standards) the corroboration rules have been thrown out altogether: Susan Brownmiller, Against Our Will (Penguin ed., 1975), pp. 278, 372. Moreover, the principles of “modern psychology” outlined by Wigmore and expanded by Glanville Williams are under attack in the post-Freudian area: see Barbara Toner, The Facts of Rape (London, 1977), pp. 112, 202, and Australian Law Reform Commission Discussion Paper No. 16, “Reform of Evidence Law” (Sydney, 1980), p. 3. A proper consideration of these matters and their implications for Papua New Guinea awaits argument at another time. I would add in conclusion and for greater caution that the rules relating to corroboration apply in cases of sexual assault upon males as well as upon females.

Appeal allowed. Conviction quashed. Sentence set aside.

Solicitor for the appellant: Young & Williams.

Solicitor for the respondent: L. Gavara-Nanu, Public Prosecutor.