Peter Townsend v George Oika [1981] PNGLR 12

• Jurisdiction: Papua New Guinea
• Judge: Greville–Smith J, Pratt J, Miles J
• Judgment Date: 06 March 1981
• Citation: [1981] PNGLR 12
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC191

Full Title: Peter Townsend v George Oika [1981] PNGLR 12

Supreme Court: Greville–Smith J, Pratt J, Miles J

Judgment Delivered: 6 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PETER TOWNSEND

V

GEORGE OIKA

Waigani

Greville Smith J Pratt J Miles J

5-6 December 1980

6 March 1981

CRIMINAL LAW — Particular offences — Assault — Evidence indicating assault of sexual nature — Corroboration — Whether rules relating to apply — Criminal Code, s. 353.

CRIMINAL LAW — Evidence — Credibility — Corroboration — Common assault — Evidence indicating assault of sexual nature — Need for corroboration — What constitutes corroboration — "Supportive evidence" — Need to advert to rule requiring corroboration — Need to record advertence to rule — Criminal Code, s. 353.

CRIMINAL LAW — Appeals — Appeal against conviction — Miscarriage of justice — Assault of sexual nature — Need for corroboration — Failure to advert to rule requiring corroboration — Failure to record advertence to rule.

INFERIOR COURTS — Practice and procedure — Offences involving elements of sexual nature — Need for corroboration — Magistrate to state and record dangers of convicting on uncorroborated evidence, what constitutes corroboration in particular case, or what in absence of corroboration makes it safe to convict.

Where a charge of common assault contains elements of a sexual nature the common law rules relating to the need for corroboration apply.

Montgomery v. Counsell; Ex parte Counsell [1956] St. R. Qd. 120; and

Thomas Arthur McCallum v. Gregory Buibui [1975] P.N.G.L.R. 439 followed.

The applicable rule requires the court to advert to the danger of convicting on the evidence of the prosecutrix alone, unless that evidence is corroborated, in some material particular, by other evidence, from an independent source, which renders it probable that the offence charged has been committed by someone and that it was the accused who committed it.

Semble:

The need for corroborative evidence may be satisfied by significant evidence, falling short of corroboration at law, of such a nature as to be confirmatory or supportive of the evidence of the prosecutrix in some significant way as to her allegation that she has been assaulted.

Where the rules relating to corroboration need to be applied account should be taken of the presence or absence of corroboration and the failure to note this in the judgment is fatal to conviction unless the appeal court can be satisfied that no miscarriage of justice has occurred.

Thomas Arthur McCallum v. Gregory Buibui [1975] P.N.G.L.R. 439 applied.

As a matter of practice a magistrate in all cases having a sexual element, should state and record, when the evidence and the addresses are concluded, that he understands the dangers of convicting upon the uncorroborated evidence of the woman or girl concerned and should then proceed to consider what the verdict should be with those dangers in mind. If he finds there is corroboration, he should, when giving judgment, state and record what constitutes such corroboration, and if there is no corroboration and he convicts, he should state what it was that, in the absence of corroboration, in the particular case, led him to the conclusion that it was safe to convict.

Held:

Accordingly, an appeal against conviction on a charge of assault under s. 353 of the Criminal Code should be allowed, where there were allegations of a sexual nature and where the magistrate and counsel for both prosecution and defence had failed to advert to the need for corroboration at all, and where there was no corroborative or "supportive" evidence.

Appeal.

This was an appeal against a judgment and order of the National Court dismissing an appeal against conviction by the District Court on a charge of common assault under s. 353 of the Criminal Code.

Counsel:

I. Molloy, for the appellant.

L. Gavara, for the respondent.

Cur. adv. vult.

6 March 1981

GREVILLE SMITH J: This is an appeal by Peter Townsend against a judgment and order of the National Court dismissing his appeal from a conviction before the District Court on a charge of common assault. Such charge was brought under s. 353 of the Criminal Code, the relevant part of which is as follows:

"353. COMMON ASSAULTS

Any person who unlawfully assaults another is liable on summary conviction to a fine of K200.00, inclusive of costs, and in default of payment to imprisonment with hard labour for six months unless the fine and costs are sooner paid, or to imprisonment with hard labour for six months in the first instance."

There were three grounds of appeal before this Court. Two of them in my opinion have no substance and I do not propose to refer to them further. The remaining ground was that his Honour the learned trial judge erred in law in holding that the conviction should not be quashed despite the magistrate's failure to bear in mind the danger of convicting upon uncorroborated testimony.

Relevant excerpts from his Honour's judgment relating to facts and evidence are as follows:

"Before the District Court the Police case was as follows. The appellant is the Provincial Works Manager based at Goroka. One Saturday morning, the 24th of May, he went to his office. Between 12 noon and 12.20 pm he entered an office where the victim Lucy Kumel was working. She is an accountant machinist; she was alone in the office at the time.

After some conversation between them about work matters, the following incident occurred, in the words of the victim Lucy: —

'He kept on staring at me, then he came close to me on my right, and started tapping my hair. I did not have bad feelings. Then he held my two hands and pulled them and holding my shoulders and I said "What are you trying to do?".

He then pulled me out of the chair to the open space, and he started to touch my breasts, and my private part, and I told him I would tell Peter Harold; then he left me and he went out to his car and left.

I went to see my boss, he was not there. I then told Thomas about the incident and we told Peter and then we reported the matter to the police.'

Lucy Kumel testified before the District Court. She said she had been at work that day since 9.30 am; she had been employed there for about a month. She believed the time was 12.20 pm when the appellant came in, because she asked him the time, before the assault commenced. She demonstrated to the court what had happened to her. She said the appellant 'kept holding me tight on to him', while she was calling out. She thought he held her thus for about five to eight minutes, in the course of which, she said, he 'tried to put me on the floor with his hands'. After the appellant left, she said 'I cried, as I felt bad'. She was at the police station by about 1 pm. The police had opened that in the course of the assault, her pants had been pulled down to her knees, but the witness made no mention of that.

The other police witnesses were two of her fellow workers, Messrs. Thomas Auis and Avi Boroa. They had also been working at the office premises that morning but had gone to lunch at 12 noon. At the time they left, they spoke briefly with the victim. Later, at their house not far away, the victim came crying to them.

The appellant also testified. He said he arrived at the office that morning, at about 11.30 am. He worked in his own office for a while, then took some files to the room where the victim was working alone; he said he had a brief conversation with her, and then left. He said that Lucy had asked him the time, and it was exactly 12.10 pm, and he stayed only three to four minutes in the room with her. He denied any assault upon Lucy Kumel. He arrived home some five minutes walk from the office in time to hear the news at 12.30 pm. In this account, he was supported by his wife, who said he was home by 12.21 pm.

The magistrate found that the alleged assault had in fact taken place. It is clear that he believed Lucy Kumel's account and disbelieved the appellant. They were both testifying before him and he was of course in a position to assess their truthfulness and accuracy of recall.

This Court is not."

On the matter of corroboration Lord Hailsham in Reg. v. Kilbourne [1973] A.C. 729 at p. 739.1 said:

"In my view, there is no magic or artificiality about the rule of practice concerning corroboration at all. In Scottish law, it seems, some corroboration is necessary in every criminal case. In contrast, by the English common law, the evidence of one competent witness is enough to support a verdict whether in civil or criminal proceedings except in cases of perjury (cf. Hawkins' Pleas of the Crown, vol. 4, c. 46, s. 2; Foster's Crown Cases (1762) 233). This is still the general rule, but there are now two main classes of exception to it. In the first place, there are a number of statutory exceptions."

After stating the statutory exceptions Lord Hailsham continued as follows [1973] A.C. 729 at p. 740.2:

"But side by side with the statutory exceptions is the rule of practice now under...