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State v Guma [1975] PGLawRp 507; [1976] PNGLR 10 (15 October 1975)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 10 - The State v Bike Guma 

[1976] PNGLR 10

N14

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BIKE GUMA

Kundiawa

Raine J

13-15 October 1975

CRIMINAL LAW - Evidence - Corroboration - Rape - Desirability of corroboration of accomplice - Circumstances in which evidence of prosecutrix corroborated by that of accomplice and vice versa.

On a trial of rape both the prosecutrix and a co-offender, who had been convicted and was serving a sentence of five years’ imprisonment, gave evidence, parts of which were not independently corroborated. The prosecutrix had been the victim of a pack rape when she came upon the aftermath of a very serious tribal fight late in the day, and in circumstances in which lack of consent was not a real issue.

Held

Although in cases of rape it is a rule of practice falling not far short of a rule of law that makes corroboration of a prosecutrix highly desirable, and whereas the same principles apply in the case of uncorroborated evidence of accomplices, and whereas the only issue on which there was any lack of corroboration was identification of the defendant, in the circumstances there was no reason why the evidence of the prosecutrix should not be corroborated by that of an accomplice of the accused and the evidence of the accomplice by that of the prosecutrix.

Trial

This was a trial on a charge of rape, in which evidence, parts of which were not independently corroborated, was given by both the prosecutrix and an accomplice of the accused.

Counsel

K. B. Egan, for the State.

C. J. Russell, for the accused.

Cur. adv. vult.

15 October 1975

RAINE J:  The accused stands charged with raping Maria Angli Kapi on 12th January, 1974.

The prosecutrix and her friend Kathleen, had the misfortune, early in 1974, to walk into a group of people who were extremely upset because, so it seems, they had been worsted in battle by enemies, and their lands occupied and wrecked.

I do not intend to waste any time in dealing with the facts; I completely accept the prosecutrix, and I completely accept En Baken, who was convicted, on his own, due to the escape of probable co-offenders, of raping Maria. He is serving a sentence of five years for his part in what was a pack rape. His complaint is that his co-offenders should be in gaol with him. But for this, he seems to accept his lot.

I find, beyond reasonable doubt, that:

N2>(i)       On 12th January, 1974, there was a confused scene when the prosecutrix and her friend came upon the aftermath of a very serious tribal fight.

N2>(ii)      Over 50, and up to 100 people, from a line or clan worsted in battle, were milling around in an excitable state of mind.

N2>(iii)     When the girls walked into this dangerous scene an old man, who had been wounded, started to stir the people up.

N2>(iv)     A number of men encircled the girls and tried to grab hold of them.

N2>(v)      The accused was in the group. I cannot say, there is conflict, whether he was, in the earlier stages, in the centre of the excited group, but he was close by.

N2>(vi)     The girls did nothing to encourage anybody to think they were on the scene for any sexual reasons.

N2>(vii)    Nothing Maria and her friend did could have caused anybody present to hold a mistaken view about what I hold in (vi) (supra).

N2>(viii)    After some confused events, and I acknowledge there is confusion in Maria’s mind as to the number of men involved at various times and places, there is not the slightest doubt that a number of people had intercourse with her.

N2>(ix)     The intercourse was without her consent, she struggled violently. Her clothes were torn, she was seen very soon afterwards by men whom I accept, and, later, by a nursing sister. She made complaints about being raped. She was bruised. She was upset.

N2>(x)      It is not a case where it was, or could be, suggested that she behaved stupidly, and, short of actual consent, misled her attackers into thinking, on reasonable, or even rather unreasonable grounds, that she was really in a consenting frame of mind. She was outraged in a cruel and foul way.

N2>(xi)     En Baken, despite the fact that he labours under what he feels is a sense of injustice, was a witness of truth. I entirely believe him, subject to legal considerations I will later discuss. This concerns the fact that he is, as I find, and as the State concedes, an accomplice. This concerns the question of corroboration, or the desirability of it, and is tied in with the desirability of a prosecutrix in this type of case also being corroborated.

N2>(xii)     Counsel for the accused submits that, in effect, there is no real corroboration of the identification of the accused by Maria as being the second man to have forced intercourse with her. Subject to the corroboration aspects referred to in this and the preceding sub-paragraph, I accept Maria as an exceptionally good witness, and an honest one. She is extremely intelligent, she was definite, and was not silly and emotional. I think she has got over her ordeal, so far as a woman could, although I do not suggest for a minute that she is anything but furiously resentful about it.

CONCLUSION

It will be obvious that, apart from this question of the need for corroboration in the two cases mentioned, I would find this accused guilty out of hand.

However, as a tribunal of fact, so it is said, I must be wary of accepting the uncorroborated evidence of a prosecutrix and of an accomplice.

In rape it is a rule of practice, falling not far short of a rule of law, that makes the corroboration of a prosecutrix highly desirable. It is dangerous to act on the uncorroborated evidence of a prosecutrix in this sort of case. I do not pay mere lip service to this. I believe it is a sensible approach. The principle applies in this case, an outraged, angry girl might not care who goes to gaol. However, the principle usually applies in the “lack of consent” situation, and this is not really in issue here, although, of course, it is an issue that the State must establish.

So far as accomplices are concerned, the mandatory provisions of s. 632 of the Criminal Code no longer apply. However, the same principles apply as in the case of the uncorroborated evidence of accomplices as do in the case of the uncorroborated evidence of a prosecutrix.

Thus, in effect, Mr. Russell’s argument goes along these lines. Counsel submits that there is no other evidence involving his client, except for the evidence of Philip Umare and Gabriel Wamina, but this only shows that the accused was on the scene. Mr. Russell goes on to say, in effect, isolating the evidence of the prosecutrix and that of the accomplice, that the evidence of each not being corroborated, that the one cannot corroborate the other, that it is, as it were, adding nothing to nothing.

I find this with respect to be quite unrealistic. I think the submission ignores the combination of witnesses we have here. The usual situation is well known. In rape the girl says, “No consent”. The man says, “She consented”. In the absence of medical evidence, indicating a good deal more than damage to the prosecutrix caused by inexperience, or roughness, with no other evidence at all of lack of consent, it goes without saying that one must be extremely careful before proceeding to conviction.

Similarly with accomplices. Their evidence should be treated with extreme caution.

But the situation here is different. I see no reason why the prosecutrix should not be corroborated by an accomplice of the accused, and the accomplice by the prosecutrix.

One would wish to have a better library than the one here to assist one. I have, since I reserved, looked at R. v. Boardman[viii]¹ which is on the shelves here. However, they are very short reports, or reviews. I have previously read the case in the All England Reports.

Counsel and I were aware of its existence during argument. It was adverted to tentatively; I remembered some of the facts, one of the Bar got the name right, the other had some grasp of the principles involved. However, this is the way in which one must work in out-of-the-way places when the unexpected occurs, and there are no library facilities to speak of.

I do not think that Boardman’s case[ix]² is decisive, but I do think it is analogous in some ways, although I find it hard, without the full report and other learning, to explain this as logically as I would wish.

It is not suggested that there is any lack of corroboration on any issue other than identification.

I am satisfied beyond reasonable doubt, acknowledging, as I do, all the difficulties, darkness or gloom, fear, anguish, the number of people present, and so on, that the prosecutrix recognized the face of the accused. She knew his face, even though she did not know him by name, or to talk to. I believe En Baken, acknowledging the suggestion that he might well have an axe to grind, because of his feeling of resentment at being the only one of the pack to suffer.

I have paid close attention to the accused’s statement from the dock. State Prosecutors here regard, so it seems, these unsworn statements as being most evil creatures, and conistantly refer to Peacock v. The King [x]³. But in many cases here I get more value from an unsworn statement by a local, particularly where, as here, it is a fairly lengthy one. He has to give it unaided, he cannot be helped by counsel. And I have no doubt that any attempts to coach him beforehand are generally doomed to failure. Peacock’s case is more applicable to intelligent and educated accused persons.

Thus, as I have said, I paid close attention to the accused. I was not impressed. I think he is glib. He tried, as he did in his long interview with the police, to put himself in a very good light, the one compassionate human being amongst 50 to 100 wicked men. I am not impressed by him.

I accept the Crown case. There are no doubts in my mind as to the accused’s guilt, and I have not the slightest hesitation in convicting him. He is guilty as charged.

Verdict of guilty of rape.

Solicitor for the State: L. W. Roberts-Smith, Public Prosecutor.

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