Michael Tenaram Balbal v The State (2007) SC860

• Jurisdiction: Papua New Guinea
• Judge: Sevua Kandakasi and Gabi JJ
• Judgment Date: 22 February 2007
• Citation: (2007) SC860
• Docket Number: SCRA 05 OF 2004
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC860

Full Title: SCRA 05 OF 2004; Michael Tenaram Balbal v The State (2007) SC860

Supreme Court: Sevua, Kandakasi, and Gabi, JJ

Judgment Delivered: 22 February 2007

SC860

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 05 OF 2004

BETWEEN:

MICHAEL TENARAM BALBAL

Appellant

AND

THE STATE

Respondent

Kokopo: Sevua, Kandakasi, and Gabi, JJ.

2006: 30 August

2007: 22 February

APPEAL - CRIMINAL LAW – Appeal against conviction - Appellant obliged to show identifiable error committed by trial judge to warrant Supreme Court’s interference of trial judge's finding - Where credibility of witnesses is an issue – Trial judge in better position than appellate court to determine the issue unless clearly identifiable error by trial judge is demonstrated - Appellant failing to establish identifiable error by trial judge - Appeal dismissed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Witnesses of tender age in sexual offences – Sexual offences - Need to caution such witnesses of the risks of giving false evidence under oath – Corroboration no longer required in sexual offences – Court can convict on uncorroborated evidence of tender aged children provided the Court warns itself of the dangers inherent in acting on such evidence.

CRIMINAL LAW - Verdict –Indecently dealing with girl under 16 years old and rape of daughter by natural father – Victim in grade 1 at time of offence and in grade 3 at time of trial – Complaint made some time later – Victim’s evidence corroborated by other evidence – Evidence in rebuttal not credible - No good reason to doubt victim’ s and other evidence for the prosecution – Trial judge viewed scene - Finding of guilt beyond any reasonable doubt open – No serious error by trial judge identified - Trial judge in better position to appreciate scene, observe demeanour of witnesses and determine credibility of witnesses –– Guilty verdict and conviction confirmed.

EVIDENCE - Evidence of tender aged witness recalling and giving evidence of incidents occurring 1 year 8 months back - Credibility of – Whether dislike of accused over constant beating of mother sufficient reason for victim and witnesses to make up claim and testify against accused – No serious doubt created in testimony of victim’s and witnesses’ under cross-examination – Accused own evidence lacking credibility – Acceptance of prosecution case by trial judge – No serious error by trial judge identified – No reason to interfere with trial judge’s decision.

Cases Cited:

John Beng v. The State [1976] PNGLR 115.

Rolf Schubert v. The State [1979] PNGLR 66.

Brian John Lewis v. The Independent State of Papua New Guinea [1980] PNGLR 219.

Peter Townsend v. George Oika [1981] PNGLR 12.

Didei v. The State [1990] PNGLR 458.

The State v. Stuart Hamilton Merriam [1994] PNGLR 104.

Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.

David Kandakason v. The State (07/07/98) SC558.

Gibson Gunure Ohizave v. The State (26/11/98) SC595.

David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao (30/11/00) SC655.

The State v. Moki Lepi (30/04/02) N2264.

Jimmy Ono v. The State (04/10/02) SC698.

The State v. Moki Lepi (No 3) (25/11/04) N2734.

Mountain Fuel Freighters Limited v. ST Trading Limited (03/03/06) SC826.

Counsels:

Appellant in Person.

Mr. J. Pambel, for the Respondent.

22 February, 2007

1. BY THE COURT: You are appealing against the decision of the National Court (per Lenalia J.) handed down on 21 November 2003. In that decision, the learned trial Judge found you guilty of two charges. The first charge was for indecently dealing with a girl under the age of 16 and the second charge was for raping the same girl. Both of these acts were contrary to sections 217 and 347 respectively of the Criminal Code. The victim was your own daughter (named), who was then in primary school. You allegedly committed the offences on 30 June 2001, at Ranguna Village in the Kokopo area of this Province.

2. In your notice of appeal, as paraphrased by your learned counsel Mr. Donald in his submissions on your behalf, you raise the following grounds:

“(a) That the learned trial judge was wrong to accept the evidence of the victim and the mother which evidence was not true.

(b) The learned trial judge did not consider his evidence.

(c) The allegations giving rise to the charges were framed up by his in-laws who interfered with his wife and daughter (victim) and two other witnesses who did not turn up for trial.

(d) There was no evidence regarding the crime scene.

(e) There was no eye witness evidence.

(f) There was no Medical Report or evidence.”

Your Submissions

3. In your submission, your learned counsel Mr. Donald, conceded that, there was no basis to advance your claims that, the witnesses were interfered with and that, there was no eye witness. Accordingly, you abandoned these grounds or parts of the basis for your appeal. Then for your remaining grounds of appeal, your learned counsel advanced a number of arguments. First, he argued that, the victim and her mother’s evidence should not have been believed and accepted because, there were inconsistencies, the alleged indecent dealing and rape of the victim were not promptly reported and that, they had a motive to falsely claim and testify against you. He submitted that, the motive was to get you convicted of the offences in retaliation of your constantly beating up the victim’s mother, your wife, and some trouble arising out of that between yourself and your parents in-law. Secondly, he submitted that, you gave a credible account of what happened to the victim but the learned trial Judge did not give any consideration to your evidence and gave no reason for rejecting it. Thirdly, he submitted that, the scene of the crime was not preserved and as such, the visit of the scene about 1 year 8 months later, could not be of any assistance. Fourthly, he submitted that, there was serious objection to the admission into evidence the only medical report that was tendered. He added that, the learned trial Judge should have exercised much care before accepting and acting on the basis of that report. Finally, your learned counsel submitted that, in all of the circumstances, the conviction was unsafe. Therefore this Court should quash it and acquit you.

State’s Response

4. The State in response, first submitted that, the learned trial Judge carefully considered each of the witnesses testimonies and decided to accept the evidence of the witnesses called by the State which included, the victim and her mother as credible. Secondly, it submitted that, that evidence was supported by the other evidence, such as the medical report and the visit to the scene. Thirdly, it submitted that, the learned trial Judge correctly found your explanations as to what happened to the victim incredible and therefore rejected it. Fourthly, the State submitted that, the trial Judge was in a better position to observe and pass judgment on the credibility of each of the witnesses based on his observation of their demeanour in the witness box, and having visited the scene of the crimes, an opportunity this Court sitting in appeal does not have. Fifthly, the State further submitted that, the appellant has failed to demonstrate that, in all of the circumstances, the learned trial Judge fell into serious error warranting correction by this Court. On the basis of these submissions, the State finally submitted that, the Court should dismiss your appeal as having no merit.

Relevant Issues

5. From the submissions of both your lawyer and the State, we note the following issues are presented for our consideration and determination:

(1). Were there inconsistencies in the testimonies of the victim and her mother?

(2). If the answer to the first issue is “yes”, then were those inconsistencies serious enough to question the credibility of the witnesses and their testimonies?

(3). Was the belated complaint by the victim suggestive of a false claim against you?

(4). Did the State fail to adduce any credible evidence of the scene and a medical report corroborating the prosecution’s case?

(5). Did you give a credible testimony casting a serious doubt on the prosecution’s case?

(6). In all of the circumstances, did the learned trial Judge fall into any identifiable and serious error such that, it vitiates his decision on verdict thereby warranting an interference and correction by this Court?

6. The first five (5) issues relate to the evidence that were called by the parties and how the learned trial Judge treated them. The final issue calls for an overall consideration of how the learned trial Judge arrived at his decision on verdict. It would therefore, be appropriate for us to first consider the evidence adduced by the State in a bid to establish the charges against you. Then consider the evidence you called to rebut it. In doing that, we will have regard to the issues of inconsistency, belated complaint and evidence of the scene and medical reports. Thereafter, we will turn to the question of whether the learned trial Judge fell into any serious error that warrants an interference of his findings by this Court.

The State’s Case

7. We note from the records that, the State...