John Kaina v The State

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J and Brown J:
• Judgment Date: 28 June 1990
• Citation: [1990] PNGLR 292
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC387

Supreme Court: Woods, Hinchliffe J, Brown J

Judgment Delivered: 4 or 28 June 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KAINA

V

THE STATE

Waigani

Woods Hinchliffe Brown JJ

27 March 1990

28 June 1990

CRIMINAL LAW — Particular offences — Rape — Defence of valid subsisting marriage — Sufficiency of evidence of — Criminal Code (Ch No 262), s 347.

LAW REFORM — Criminal law — Particular offences — Rape — Within marriage — Time for recognition — Criminal Code (Ch No 262), s 347.

Where marriage to the prosecutrix was raised as a defence to a charge of rape, the trial judge accepted and relied upon, as evidence of dissolution of the marriage, an order of the local Village Court on a complaint to it which appeared to relate to compensatory proceedings for the behaviour of the husband to the wife.

On appeal against conviction,

Held

(Woods J dissenting) (allowing the appeal)

(1) The trial judge had misdirected himself on a question of law by relying on the compensatory order of the Village Court as evidence of a fact in issue in the trial, namely, the existence or otherwise of a subsisting valid marriage. The order of the Village Court was made in civil or administrative proceedings where the criminal standard of proof was not required.

(2) The verdict was unsafe and unsatisfactory in that material upon which the question of the existence or otherwise of a subsisting valid marriage might have been determined was not identified nor were findings as to relevant custom made.

Cases Cited

Burunge v Kaupa (Supreme Court, SC 258, 26 August 1983, unreported).

Himson Mulas v The Queen [1969-70] P & NGLR 82.

Hollington v Hewthorne & Co Ltd [1943] KB 587.

Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122.

John Beng v The State [1977] PNGLR 115.

Mraz v The Queen (1955) CLR 493.

SS Hontestroom v SS Sagaporack [1927] AC 37.

Appeal

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

Counsel

E Kariko, for the appellant.

M Unagui, for the respondent.

Cur adv vult

28 June 1990

WOODS J: The appellant is appealing against his conviction on a charge of rape. The grounds of appeal as amended are:

(a) That there was no or insufficient evidence to establish that the subsisting customary marriage between the prosecutrix and the appellant had been dissolved in accordance with the customary rules and practice applicable to both parties to the marriage and if the marriage was still existing then there could not be an offence of rape.

(b) The conviction on the charge of rape was and is against the weight of the evidence.

The principle on hearing an appeal from a judge alone and not a jury is that the court is entitled to make up its own mind on the evidence as it appears from the transcript. The appellant submits here that the Supreme Court could overturn the trial judge if it is satisfied that the trial judge's conviction is unsafe and unsatisfactory.

Whilst it is quite clear that an appellate court can make up its own mind on the evidence it must still be satisfied that the trial judge has erred in his analysis or assessment of the evidence. And an appeal court must never forget the obvious; that where the judge at first instance has had the opportunity of seeing the witnesses, where it turns on the matter of credibility, where they have been cross-examined and where he has deliberately come to a conclusion as to which side has given the correct version, it is very difficult to induce a court of appeal to differ from the decision of the judge at the first instance.

As Barwick CJ said in the case Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122 at 126: "The case, in my opinion, is another instance of the tendency of appeal courts to exercise their undoubted power to reverse a primary judge merely because they hold a view of the facts different from the view he has taken, a view not unreasonable in the circumstances of the case. The appellate court should restrain its use of its power to those cases in which it can confidently be said that the primary judge was wrong in his conclusions of fact."

We as a court of appeal should be circumspect in interfering with judgments of trial judges where experience is almost invaluable. The transcript is a poor substitute for presiding throughout a trial.

The appellant submits that the trial judge erred in finding that the marriage between the appellant and prosecutrix had been dissolved. The evidence was that the parties were married by custom and had been married and living together for about five years. The evidence was then that after some years of living together as husband and wife the accused took another woman and left the victim. The evidence was that she was forced to go elsewhere and get another man.

She went to the local Village Court to sort out any possible claim over this alleged marriage and had the marriage declared dissolved. The evidence from the prosecutrix was that he had chased her away and she then started living with another man.

His Honour heard evidence on the marriage and gave careful consideration to this evidence and I find no error in his assessment. He very carefully noted that what may be the correct practice in the cultural area may have been varied in the urban situation and the reality of urban life does not permit adherence to those traditions in a rigid fashion. He found that the relationship was a marriage in the eyes of all concerned and I respect his analysis and I find no error in his reasons. He then found that the Village Court had agreed that the marriage was dissolved. I therefore dismiss this first ground of appeal.

On the weight of the evidence, the trial judge had only the evidence from the victim and the State to consider. Whilst there were some inconsistencies in the State evidence the trial judge had no other evidence to consider. He carefully analysed all the evidence in his judgment and bearing in mind that the transcript is a poor substitute for presiding throughout the evidence, I can find no error in his analysis of the evidence. As Lord Sumner said in the case SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:

"Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII, r 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he had failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."

As I find no error in the trial judge's assessment of this evidence I therefore dismiss the second ground of appeal.

HINCHLIFFE BROWN JJ: This was an appeal (brought under s 4 (2) of the Supreme Court Act (Ch No 37) in reliance upon s 23 (1) (a) ) against a conviction for rape. It is an appeal against a decision of Amet J at Waigani where judgment was delivered and sentence handed down on 22 December 1988. The appellant was also found guilty of assaulting the prosecutrix. The trial judge sentenced the appellant to 4 years imprisonment in hard labour for rape and 7 months imprisonment in hard labour, (to be served concurrently with the rape sentence) for the assault.

The short facts were that the prosecutrix was at work at Gordons when the appellant entered the premises, assaulted her and afterwards forced her, whilst brandishing a knife, into her bedroom where sexual intercourse without her consent took place. This happened at about 10 am.

A material fact in issue was whether the prosecutrix remained married to the accused. Section 347 of the Criminal Code (Ch No 262) provides a definition of rape which precludes a conviction, where the prosecutrix is married to the accused. The appeal is concerned with the trial judge's finding that a customary marriage between the appellant and the prosecutrix had been dissolved. The written grounds relied upon by counsel for the appellant were varied to include, inter alia:

1. that his Honour erred in finding the marriage between the appellant and the prosecutrix had been dissolved;

2. the verdict was unsafe and unsatisfactory in a number of particulars;

which counsel orally pressed before this Court.

During the trial a lengthy voir dire was conducted on the aspect of, first, the supposed customary marriage between the prosecutrix and the accused and secondly, on the dissolution of such marriage. The learned trial judge relied upon a finding by the Saraga Village Court as to dissolution. There is evidence...