SC2760

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 30 OF 2022 

TOM JOHN MOU
Appellant

V

STATE
Respondent

WAIGANI: PITPIT J, AUKA J, MIVIRI J  
29 MAY 2023

SUPREME COURT – PRACTICE & PROCEDURE – Appeal – Against Conviction – Persistent Sexual Abuse Section 229D (1) (6) CCA – Two Or More Acts of Sexual Nature Over Two Years – Daughter Father – Sworn Evidence of Daughter – Co Accused & one Other in Defence – Weight of – Credibility –Discretion of Primary Judge – Appellant to Demonstrate Error In – Appellant to Point To – No Error Demonstrated Against Discretion – Decision At Primary Confirmed – Appeal Dismissed.

SUPREME COURT – PRACTICE & PROCEDURE – Appeal – Against Conviction – Persistent Sexual Abuse Section 229D CCA – Evidence – Co Accused – Accomplice – Evidence of – Weight to Be Attached – Consideration of one Over other – Determination to be Made – Effect Of – Whether Error – Sufficient to Vitiate Decision at First Instance – Weight to be Given – Totality of Evidence – No Error Demonstrated – Conviction Confirmed – Appeal Dismissed.

Facts
The appellant was convicted after trial of persistent Sexual abuse pursuant to section 229D of the Code on the sworn testimony of the victim and her witnesses. She was his daughter he was the natural father. He argued that the evidence of the mother co accused with another witness that he called in defence were not considered as to why the Court chose them and not his evidence.

Held
The Court properly exercised its discretion in all matters hence the conviction was not vitiated by error. It was a matter of weight to be given. It stood in law and there was no basis sustaining except to disallow and dismiss the appeal. Appellant did not demonstrate any error apparent or identifiable in that decision. Conviction is confirmed Appeal is dismissed forthwith.

Cases cited
State v Miriam Kakun (1997) N1673
Kandakason v The State [1998] PGSC 20; SC558 
Waranaka v Dusava [2009] PGSC 11; SC980 
Hagena v State [2017] PGSC 55; SC1659 
John Jaminan v The State [1983] PNGLR 318 
Beng v The State [1977] PNGLR 115
Mai and Avi, The State v [1988-89] PNGLR 56 
Peng v The State [1982] PNGLR 331 

Counsel
F. Kirriwom, for appellant.
H. Roaloakona, for the respondent
					
DECISION

1.	BY THE COURT: This is the decision of the Court on the appeal by the appellant against his conviction of persistent sexual abuse pursuant to section 229D of the Criminal Code returned upon him after trial on the 04th April 2022. On the 23rd May 2022, He was sentenced to 23 years in prison.

2.	He lodged a notice of appeal against that conviction on the 31st May 2022. There is no issue as to the time of that notice. And no other preliminary issues have been raised. We heard the appeal and reserved for our decision that we now deliver. 

3.	In essence he challenges his conviction and argues that it cannot stand in law because the trial Judge failed to properly consider the evidence of the appellant’s witness Renitta Aisi, which evidence if considered would have casted doubts as to whether the acts alleged between the 1st and the 31st August 2016 were committed. And would have vitiated the conviction that was sustained. Because he argues that her evidence was significant and deserved proper consideration on account of the fact that the acts which were found to have committed by the Appellant between the 1st and the 31st August 2016 were supposedly, jointly committed by the appellant and his wife Renitta Aisi, the witness. Who gave evidence denying entirely and thereby rebutted the allegation of the complainant that together with the appellant both jointly sexually assaulted the complainant between the 1st and the 31st August 2016.

4.	He further argues that the trial Judge ought to have considered the totality of the witness’s evidence and assign weight to each of them as appropriate in the circumstances. That in failing to consider and to give weight the trial Judge erred because the witness Renitta Aisi denied entirely which effect was to rebut the allegation of the complainant that she and the appellant had jointly sexually assaulted the complainant between the 1st and the 31st August 2016.  

5.	He further argues that the trial Judge failed to address and assess that the trier of facts ought to consider the totality of the witness’s evidence and assign weight to each of them as appropriate in the circumstances. And to consider the totality of the evidence would distort the picture of the evidence. He relies on State v Miriam Kakun (1997) N1673. That is a decision of the National Court determining as to how the Court went about in weighing the evidence to arrive at the verdict on the matter. It is peculiar to the facts and circumstances of that case and does not resound the law in this area. It does not necessarily set out the law as to weighing out of evidence and the like. The Supreme Court is not bound nor is it shackled by a decision of the National Court. It is of persuasive and not conclusive nor binding us. 

6.	In any case we consider that the law in this area is set out in Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); reinforced in Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Because here is a case where the trial Judge was choosing between the evidence of the State principal witness and that of the Appellant with his witness, wife, Renitta Aisi. At page 349 of the Appeal book lines 36 to 41, “They both tried to explain in their own ways that these are words-sorry, they both tried to explain in that term in their own ways. But these are words that professionals within the mental health community use to describe the conditions of people. Both witnesses are not mental health professionals and there is no evidence that this complainant has been diagnosed by an expert to be a compulsive and pathological liar. It is therefore not proper for this Court to accept or to find that that is the condition the complainant suffers from without expert evidence. But even if without that, there is no evidence in court to suggest that the complainant has lied about anything that concerns this trial. For example, the usual challenge to inconsistent statements never occurred in court during trial. The complainant was consistent and to me, she demonstrated being truthful with her evidence. There is no evidence from either her family members, example, her mother or grandparents to show that she told a lot of lies.”

7.	 The Court chose the evidence of the complainant over and above that of the appellant and his defence witness. The law is that where there is any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense, they are basis for rejection of such evidence. Here is a challenge based on reliance on the evidence of an accomplice or co Accused as it were, Renitta Aisi who is alleged to have together with the appellant got the complainant into sexual relationships together over that period. The Court chose the evidence of the complainant over and above that of the Appellant and his wife accomplice Renitta Aisi. It was entitled to do that having observed the demeanour of the witnesses and made its assessment upon to find. We do not have that benefit nor do we find cause in law to disturb that finding. We are confined to the findings made there and the law.

8.	Relevantly we reinstate that the law on accomplice evidence in our view is settled now Hagena v State [2017] PGSC 55; SC1659 (11 December 2017) that accomplice evidence must have independent and material evidence corroborating the account that is given by the Accused. Both can be charged for the same offence of persistent sexual abuse and penetration here on the same indictment. So, the Court was within law to reject the evidence of the wife accomplice and to choose that of the Complainant. In any case there is no demonstration there as basis for the rejection of that evidence. We draw analogy with John Jaminan v The State [1983] PNGLR 318 (29 September 1983), that the appellant was creating what was not there. He was bringing an incredible story that was rejected by the Court. That her honour did not believe the defence evidence. And these are the reasons that her honour set out, “Having discussed the defence evidence in that way and the complainant’s evidence I accept the complainant’s story. I find her story to be credible, and I find her evidence to be honest, and I find her evidence to be convincing for the following reasons: She was consistent in her story in chief, under cross examination she maintained her story. Her evidence was not destroyed. Her evidence on the circumstances of each of the three occasions left the impression on me that she was speaking from her primary witness point of view; speaking from what she had gone through herself and not what somebody would have told her. She gave details about the specifics of each occasion of the sexual conduct, line 25 to 42 of the appeal book page 352.

9.	And these are the relevant facts are that, between the 1st of September 2015 and the 31st April 2017 on two or more occasions the appellant the biological father of the complainant engaged in an act of sexual touching and sexual penetration of the complainant daughter. He sexually abused Zilliah Mou his biological daughter on two or more occasions by penetrating her with his penis into her mouth, vagina, and anus. He also touched her breasts, her vagina with his hands and mouth. He was at all material times in a position of trust authority and dependency because he was her biological father. In September 2015 Zilliah Mou was 13 years old and doing grade 7 at the Bomana Primary School. These were all established beyond all reasonable doubt and the court at first instance was entitled to find as it did, guilty as indicted.

10.	What is underlying the appeal grounds from 1 to 6 must confine with the law settled in Beng v The State [1977] PGSC 3; [1977] PNGLR 115 (2 May 1977) that;  “on appeal against conviction pursuant to s. 22(1)(a) of the Supreme Court Act 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.” The appellant must point this Court to the decision at first instance where there is reasonable doubt as to the safeness or satisfactoriness of the verdict at first instance. That is the evidence produced must be safe to be relied on so as to sustain the conviction leading. Safeness of the evidence for instance is that it is tendered through a process in law. It becomes part of the proceedings evidentiary by process of law not without: Mai and Avi, The State v [1988] PGSC 22; [1988-89] PNGLR 56 (3 June 1988). Rights under section 42 (2) of the Constitution are not accorded with the question, do you want to see a lawyer now or later. Such will not be held as evidence against the accused. We cannot say the same for the evidence of an accomplice wife relied by the appellant at first instance. 

11.	So, the question to be determined now is on the examination of the Judgment at first instance, is there error apparent or identifiable in the way that the appellant has raised? In our view considering there is no error apparent on the face of the Judgement. On the converse the Supreme Court will not introduce new evidence without a formal application to introduce fresh evidence in accordance with section 6 Supreme Court Act; Peng v The State [1982] PGSC 15; [1982] PNGLR 331 (6 September 1982). We are not convinced that lawful basis has been made nor demonstrated by the appellant to disturb the verdict at first instance. We will confirm that verdict as sound in law. No arguments have been made against the decision in the sentencing discretion exercised. In the aggregate we hold no reason apparent or identifiable in law demonstrated by the appellant to disturb the verdict at first instance.

12.	We will make the formal orders of the Court in these terms: 

(i)	No error has been demonstrated against the orders at first instance. 
(ii)	We confirm the verdict at first instance.
(iii)	We dismiss the appeal as being without merit.
(iv)	We make no order as to costs.

Orders Accordingly.
_________________________________________________________________
Lawyer for the appellant: Public Solicitor
Lawyer for the respondent:  Public Prosecutor