Charles Didei v The State

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Salika J
• Judgment Date: 02 November 1990
• Citation: [1990] PNGLR 458
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC399

Supreme Court: Kapi DCJ, Sheehan J, Salika J

Judgment Delivered: 2 November 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DIDEI

V

THE STATE

Waigani

Kapi DCJ Sheehan Salika JJ

24 July 1990

2 November 1990

CRIMINAL LAW — Particular offences — Rape — Evidence — Corroboration — Warning on uncorroborated evidence — Failure of judge to want and record warning — Miscarriage of justice.

CRIMINAL LAW — Appeal and new trial — Miscarriage of justice — Rape — Conviction on uncorroborated evidence — Failure of judge to warn and record warning — Miscarriage of justice.

Held

The failure by a trial judge to warn himself of the danger of accepting the uncorroborated evidence of the prosecutrix in a rape trial and the failure to record that he has so warned himself constitutes a miscarriage of justice sufficient to warrant a retrial.

McCallum v Buibui [1975] PNGLR 439 at 445 and Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279 at 1285, considered and applied.

Cases Cited

Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279.

McCallum v Buibui [1975] PNGLR 439.

R v Trigg [1963] 1 WLR 305.

Appeal

This was an appeal against conviction on a charge of rape.

Counsel

E Kariko and G Gendua, for the appellant

M Unagui and S Madana, for the respondent

Cur adv vult

2 November 1990

KAPI DCJ SHEEHAN SALIKA JJ: The appellant was convicted on a charge that he on 7 December 1986, at Mt Hagen, committed rape upon one Dambo Steven. He now appeals against that conviction and the sentence of five years imprisonment with hard labour that was imposed for this offence.

The amended grounds of appeal were:

(a) That the conviction was unsafe and unsatisfactory and against the weight of the evidence in that the prosecutrix gave three different versions of events relative to the alleged rape.

(b) That conviction was unsafe and unsatisfactory in that there was no medical evidence to prove that sexual intercourse took place that night and that as a result the prosecutrix being a virgin had her hymen torn and she bled.

(c) That the trial judge had erred in law in that he attached much weight to the evidence of the two State witnesses namely James Bohon and Steven Baliho who were present in court at the trial when the prosecutrix had given her evidence in examination in chief and the first part of the cross-examination.

The appellant seeks orders that the conviction be quashed and set aside.

The brief facts of the case were that: On the evening of 6 December 1986, the prosecutrix was at her place with her parents at Kundeng. The appellant went over and picked her up and told her parents he would take her to his house in Mt Hagen town to stay with him and his wife. The appellant was a cousin-brother to the prosecutrix so the parents expected no trouble. The appellant took the girl and drove towards Mt Hagen at about 6 pm to 7 pm. He turned into the airport road and went to the disco at the Plumes and Arrows Hotel. They were there until about 3 am when he told her they were going home.

Instead of going home he took her towards the Mt Hagen show grounds where there was no one about. There he grabbed her and asked to have sex with her. She refused and...