Birch v The State

• Jurisdiction: Papua New Guinea
• Judge: Kearney J:
• Judgment Date: 28 March 1979
• Citation: [1979] PNGLR 75
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC146

Supreme Court: Prentice CJ, Raine DCJ, Kearney J

Judgment Delivered: 28 March 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BIRCH

V

THE STATE

Waigani

Prentice CJ Raine DCJ Kearney J

5 March 1979

28 March 1979

APPEAL — Leave to appeal — Out of time — New ground of appeal — Date set for hearing of appeal — Twelve months since conviction — Proposed ground always available — Adequate reason for leave to be shown — Leave refused.

DISCOVERY AND INTERROGATORIES — Production of documents — inherent jurisdiction of court — Document actually and visibly in Court — Document incriminating — Copy record of interview — Copy already supplied by prosecutors — Order for production properly made.

CRIMINAL LAW — Practice and procedure — Witnesses — Control of court over — Questioning by trial judge — Whether undue participation in trial — Interests of justice — Fair trial.

EVIDENCE — Witnesses — Control of court over — Questioning by trial judge — Whether undue participation in trial — Interests of justice — Fair trial.

CRIMINAL LAW — Particular offences — Rape — Consent — Fresh complaint as evidence of non consent — Apparent principles of common law inappropriate to Papua New Guinea — Constitution of the Independent State of Papua New Guinea, Sch. 2.2.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Reception of common law — Rape — Consent — Fresh complaint as evidence of non consent — Apparent principles of common law inappropriate to Papua New Guinea — Constitution of the Independent State of Papua New Guinea, Sch. 2.2.

COURTS AND JUDGES — Reasons for judgment — Extempore judgment delivered on circuit — Undesirability of adding reasons subsequently.

The appellant was charged with and convicted of the offences of rape and unlawful carnal knowledge of a girl under sixteen years. The prosecutrix was a native girl of about eleven years of age, and a shy, withdrawn and reluctant witness of whom the trial judge asked numerous questions, thereby taking a prominent part in the trial; and the accused a man of some fifty-five years in loco parentis to the prosecutrix with a view to marriage.

On the matter of consent, there was no evidence before the trial judge of recent complaint or of physical resistance by the prosecutrix, but evidence that she knew and understood the nature of sexual intercourse, and that she knew of the arrangement for marriage and was glad about it.

During the course of the trial, the trial judge required counsel for the defence to produce to the prosecution a signed copy of a record of interview, of no real significance in the proof, actually and visibly in court, the original having been lost and which document had been supplied to the accused or his solicitor in accordance with the usual and proper practice.

At the conclusion of the trial the trial judge delivered an "extempore short judgment" stating that he would deliver a full written judgment on returning from circuit to Port Moresby. This was done (see The State v. Birch [1978] P.N.G.L.R. 79).

An appeal against conviction and sentence coming on for hearing some twelve months after the conviction and some seven months after the lodging of the notice of appeal, counsel for the appellant sought leave to add a new ground of appeal:

Held

(1) Leave to add new grounds of appeal should not be granted on the day set for the hearing of the appeal, where such grounds should properly have been included in the notice of appeal, and where any further adjournment of proceedings would unduly delay the hearing of the appeal, without adequate reason therefore being shown.

(2) The court, in the absence of notice to produce, or consent, had power to require production to the prosecution of a signed copy of the record of interview which the defence had actually and visibly in court.

The State v. Birch, [1978] P.N.G.L.R. 79, affirmed:

(3) In criminal proceedings the trial judge has power to intervene (but not unduly) by asking questions and calling or recalling witnesses if he considers in his discretion that that course is necessary to the ascertainment of truth or in the interests of justice.

Yuill v. Yuill, [1945] 1 All E.R. 183, applied.

(4) In the circumstances of Papua New Guinea including the difficulties of obtaining evidence from very young Papua New Guineans, the assistance of somewhat inexperienced prosecutors and inexpert evidence gatherers, and the absence of juries, it may be necessary for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature than would be called for or proper in other more sophisticated settings.

(5) In the circumstances, the trial judge could not be said to have intervened to such an extent that a miscarriage of justice had occurred.

(6) (Per Prentice C.J. with whom Raine Dep. C.J. agreed.) Any principle of common law which asserts that lack of fresh complaint is evidence of consent to rape is inappropriate or unsuited to the circumstances of Papua New Guinea.

(7) (Per Prentice C.J. with whom Raine C.J. agreed, Kearney J. dissenting.) In the circumstances, it could not be said beyond reasonable doubt that consent on the part of the prosecutrix had been excluded by the evidence and accordingly the verdict of guilty of rape should be set aside as unsafe and unsatisfactory under s. 22 (1) (a) of the Supreme Court Act 1975.

(8) Editorial note

In an unreported Supreme Court decision Ryan v. The State (judgment S.C. 148 of 3rd May 1979), the three judges constituting the court, approved this proposition in these terms: "Ex post facto judgments written after conviction, are impermissible, except in the most exceptional circumstances."1 (Per Prentice C.J.) Only in the most abnormal situations should any reasons for judgment be sought to be added later to those given on circuit in a judgment actually delivered.

Appeal

This was an appeal against convictions for rape and unlawful carnal knowledge of a girl under sixteen years of age on the grounds:

(a) that the learned trial judge misdirected himself as to consent — that lack of consent was not shown;

(b) that the judge misdirected himself as to corroboration of consent;

(c) that the judge misdirected himself as to corroboration re penetration;

(d) that there was undue participation by the judge in the trial of such a nature and extent that justice did not appear to be done.

At the hearing of the appeal counsel for the appellant sought to add a new ground of appeal namely, that the National Court having convicted and sentenced for the crime of rape, should not have proceeded to convict of and sentence for the second charge also.

Counsel

B. Hoath and G. D. Payne, for the appellant.

N. M. Maraleu, for the State.

Cur. adv. vult.

28 March 1979

PRENTICE CJ: This is an appeal against two convictions — for rape and for unlawful carnal knowledge of a girl under sixteen, at Kavieng on 13th April, 1978. Both convictions arose from the one set of facts about one incident of alleged sexual intercourse. The indictment contained two counts — a course rendered necessary by the apparent draftman's error in the compilation of s. 553 of the Criminal Code 1974 when the words "with the crime of rape ..." were omitted from the body of the section, though the section remained headed "charge of rape and like offences". It would seem that no objection could be sustained to the indictment (s. 543 Criminal Code).

LEAVE TO ADD A GROUND

When the appeal was called on, leave was sought to add a further ground, viz. that the National Court having convicted and sentenced for the crime of rape, should not have proceeded to convict of and sentence for the second charge also. As the course taken by the trial judge was quite unusual (I know of no previous instance of it), it must have been obvious on the face of the record at the time, if cavil were taken at it even before reasons were given for judgment early in 1978. It is nearly one year since conviction.

The tendency for counsel to seek to add further grounds of appeal on the day of hearing or shortly before (a factor presumably aggravated by the introduction at a late stage of overseas counsel who seek perhaps to improve what may appear to them as a weak brief), has now become alarmingly frequent, and threatens the efficiency of the work of this court. Such a course was taken in each of the four appeals brought on this month.

That possibly important points of principle in the criminal law can be raised and argued in such a fashion is unsatisfactory in the extreme, when the court organisation, the commitment to circuit duties of the judges by whom the Supreme Court is constituted, and the infrequency with which short sessions of the court can be mounted, are considered. Practitioners who seek to make such applications where a matter is called on for hearing, can confidently expect that if leave be granted,...