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State v Sipi [1987] PGNC 64; [1987] PNGLR 357; N639 (5 November 1987)

N639

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SUGUERI SIPI

Waigani
King AJ

3-5 November 1987

CRIMINAL LAW - Evidence - Sexual offences - Corroboration - Where no evidence from victim - Victim young child - Mother giving direct evidence of what observed - Corroboration not required.

On a charge of attempting to have unlawful carnal knowledge of a girl under the age of 10 years, the victim, aged eight years did not give evidence. The mother of the victim gave evidence of what she had seen which was accepted by the court.

Held:

The evidentiary rule to the effect that, in sexual cases, it is prudent to require corroboration of the evidence of the complainant/victim was not relevant where the complainant/victim did not herself give evidence and was not to be applied to the eye-witness evidence of the mother.

Cases Cited

The following cases are cited in the judgment:

R v Paita Mireseika (unreported, Supreme Court 1959, No 139).
State, The v Beraro (unreported, Los J, 6 August 1987).

Trial

This was a trial on a charge of attempting to have unlawful carnal knowledge of a girl under the age of 10 years.

Counsel:

G Towaluta, for the State.
L Wenge, for the accused.
Cur adv vult

5 November 1987

KING AJ.: The accused has pleaded not guilty to an offence charged against him upon indictment pursuant to s 215(1) of the Criminal Code (Ch No 262), namely attempting to have unlawful carnal knowledge of a girl under the age of 10 years, at Gerehu Stage 4 on 16 June 1987.

The State case comprised the oral evidence of SK, the mother of the alleged victim, the accused’s written statement taken by the magistrate upon his committal, and the accused’s record of interview. The alleged victim JSK was tendered as a witness but on preliminary examination I found her unfit to take the oath, and when, as was done by Los J in the case of a younger child in The State v Java Johnson Beraro, (unreported, Los J, 6 August 1987) I tried to take her evidence on affirmation she could not or would not speak and did not make the necessary affirmation. This was so notwithstanding that she had haltingly, quietly, and with some slight weeping, answered questions on my examination as to her capacity to take an oath. In the event I ruled that no evidence could be received from her.

The evidence of the mother was that her daughter was eight years old at the time of the alleged offence; that on the morning of 16 June 1987 she left her and her baby son in the house whilst she did the laundry underneath it; that her husband and his wantoks staying at the house had gone to work about 7.00 am and she thought the accused had also left, he having spent the night at the house; and that when she went up to the house she found the accused and her daughter naked on some sort of bed, with the accused behind the girl holding her and with his erect penis close to her buttocks. She said first that she had been thinking about going up to check on the children, and then in cross-examination that she went up because she heard some quiet crying which she thought was the baby. She agreed that the accused and her daughter had been playing cards; that they were on a verandah of which the door was open and which was, apparently, only partially fenced or enclosed; and said that when she got up to the verandah her daughter was not crying and did not cry when asked what was happening. The girl seems to have given an account of what happened then to her mother and later to the police. The mother said she said to the accused when she saw them "she’s not your size, she’s eight-years-old" and told him to stay in the house while she went to the police. She said she and her children went to Gerehu police station, found no police, came back to the house, found the accused had gone, and that she then went to 14 Mile to tell her husband and get the police whereafter the accused was arrested.

In the witness box the mother smiled and laughed, at times I thought inappropriately. She was feeding her baby son, who was playful, from time to time in the witness box and held him throughout her evidence. When it was put to her in cross-examination that she had been angry with the accused when he previously stayed at the house for not buying food and was angry with him on 15 June when he came to the house without food, and had fabricated her evidence to make trouble for him, she readily admitted that she had at times been angry with him and that she was angry with him on 15 June, but denied she was still angry on 16 June and said with some firmness, indeed indignantly, that she had seen the events of which she complained with her own eyes.

The accused’s case was his own evidence, together with reliance on some passages of his statement to the magistrate and record of interview. He denied the events alleged. He said the mother was cross with him for not buying food and had lied about him. He said he slept outside the house on 15 June, that in the morning he had wanted to leave and got his things but the girl stopped him and they played cards; that he won and she wanted to keep playing; and that when he tried to leave she grabbed him with one hand by the shirt front near the chest and with the other hand by the penis through his trousers. His evidence suggested he was standing up at the time. At about this time the mother came up. He denied the alleged conversation and denied that he and the girl were naked. He said that she had brought a pillow and a mat to the verandah. He denied that at any time he had slept, lain down or closed his eyes on the morning of 16 June. He said when the mother and child went to the police he waited in the house for about two hours then went to work because that was more important.

In his statement to the magistrate he agreed that the mother had said "you are playing with a small girl and you are a big man or adult" and that he replied "We were only playing, not doing anything". He said that they were playing cards "and I pretending to sleep and small (girl) came and sat on my chest and was holding my penis and I hit her", saying, "don’t hold my penis" and hitting her. He made no mention of his claim that he was falsely accused by the mother who had a grudge against him for not providing food. Cross-examined about that he said the magistrate told him to cut his story down so he kept it short.

In his record of interview, he said in answer to question 19:

"I did not do anything. I was playing cards with that small girl J and later we got the bed sheets and pillows and we slept. I was hitting her on her face, under her arms, on her chest and on her two legs. At that time J’s mother came inside and she got on me not to play with J and she hit her daughter and also told J not to play with me. When she reported the matter to the police I went up to 14 Mile."

Question 37 and its answer are as follows:

"Q. 37 Sugueri, why did you not come with J’s mother to the police station and have this matter settled when this trouble happened. A. I thought they were tricking so I went to 14 Mile."

In evidence the accused said when asked why he made no mention in the record of interview of the mother’s grudge against him that the police told him to tell it to the magistrate.

The above outline of the evidence on both sides shows that there is a head on conflict between the accused and the girl’s mother to be resolved in deciding this matter, and counsel for the defence made a number of submissions as to the proper approach to the evidence. Basically his submission fell into four groups: (a) as to why his client should be believed (b) as to why the mother should be disbelieved, (c) a legal submission that I should hold that in this matter corroboration of the mother’s evidence is needed, and that it is absent, and (d) that on any view of the facts the offence was not proved.

Logically it seems to me that if the accused’s evidence is accepted that is the end of the matter. So I shall deal first with it. Mr Wenge said his client should be accepted because it was unlikely that a man would attempt such a crime on a partially open verandah with the mother so nearby and likely to enter the house at any time, and that if he did, he would not remove all his clothes. That would be unnecessary, and would increase the risk of being caught.

However, I think that this argument overlooks the very nature of the offence. A man acting under some sexual impulse may well give little or no thought to the consequences. And when one looks at the accused’s evidence and his statement and record of interview, there are too many features difficult to accept. The failure to advance the explanation that the mother bore him a grudge is significant, and I cannot accept that a magistrate would be so derelict in his duty as to cut short an important statement. Whilst I can understand a man wanting to get to work, I cannot accept that a young girl of eight could "stop" him and cannot readily accept that he would not regard the mother’s accusation and intention to go to the police as serious and accompany her to try to put his story and avoid trouble. Finally, his statement and record of interview, whilst differing in some respects from each other and his evidence, do contain some passages which are close to the mother’s evidence. I reject the accused’s evidence.

The next question is whether the mother’s evidence supports the charge, because having rejected the accused’s account, nonetheless if there is a doubt created by the State’s evidence he is entitled to be acquitted.

Mr Wenge criticised the mother’s demeanour, the discrepancy in her evidence as to why she entered the house, her evidence that there were no police, and relied on her admissions that she had been cross with the accused. As to the last matter, I do not think it weakens her evidence. She freely admitted to past anger, but in any case it is incredible to me that a mother would expose her daughter to the stress of police questioning and court appearances for no good reason. The mother was also accusing her husband’s wantok and would not do that lightly. Her whole behaviour from the time she entered the house showed a belief that something wrong had been done that must be reported to the authorities, and I accept that initially Gerehu police station was unmanned, unusual though that may be, because she pressed on, got her husband, and then went back to the police. Her lighthearted manner at times in the witness box gives me some concern, but not enough to reject her evidence, because she was very firm when challenged head on as a liar and she may have been amused at her baby’s presence and behaviour. I accept her evidence.

As to the matter of corroboration, despite Mr Wenge’s submission I regard the evidentiary rule about corroboration as going no further than this, that in a sexual case the evidence of the victim should not in most instances be acted on without corroboration. Here the victim did not give evidence but an eye witness, her mother, did. It is perhaps odd that an eight-year-old girl would tell her mother something about what happened and also the police, then answer some questions relating to capacity to take an oath put by me, but then finally become completely tongue tied, but no-one can doubt that, that is what in fact happened despite several opportunities and an adjournment being extended to try to get her to speak. I cannot as a matter of law accede to Mr Wenge’s submission that in this case there must be corroboration of the mother before a conviction can be recorded.

Finally, it seems to me that the mother’s evidence, which I have accepted, and which describes the positions in which she saw her daughter and the accused when naked and when the accused had an erection, really leaves open no other inference than that he was about to engage in some form of carnal knowledge of the girl. Mr Wenge submitted that what was seen was equally consistent with simple assault, or indecent assault or attempted indecent assault, but I did not accept that. I think the physical description of the mother puts the accused very much in the position of the accused in R v Paita Mireseika (unreported, Supreme Court 1959, No 138) who was held to be guilty.

I should say that no-one could have defended this case more stoutly than Mr Wenge but despite his efforts I have no reasonable doubt of the accused’s guilt as charged and record a conviction of the offence.

Verdict of guilty

______________________

Lawyer for the State: Acting Public Prosecutor.
Lawyer for the defendant: Public Solicitor.