The State v Bikhet Ngurares Paulo

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 28 August 1994
• Citation: [1994] PNGLR 335
• Court: National Court
• Year: 1994
• Judgement Number: N1248

National Court: Doherty J

Judgment Delivered: 28 August 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BIKHET NGURARES PAULO

Rabaul

Doherty J

26-28 August 1993

CRIMINAL LAW — Evidence — Corroboration in sexual offences reviewed.

Facts

The accused was indicted on one count of incest with his daughter. He elected to exercise his constitutional right of remaining silent and called no witnesses. He objected, successfully, to his wife giving evidence for the prosecution and to the admission of the record of interview. He alleged that the allegations made against him were fabricated. However, he provided no evidence to support his allegation of fabrication. His counsel argued that the evidence of the victim was not corroborated and, therefore, the Court must acquit.

Held

1. The accused was guilty as charged, as he adduced no evidence to rebut the evidence of the State and cause a doubt in the mind of the Court.

2. There is no statutory requirement for corroboration in incest or in other offences of a sexual nature. However, the common law rules of corroboration in sexual offences have been adopted and extended in Papua New Guinea.

3. The prosecutrix was truthful in her evidence, which was corroborated, and the allegation of fabrication cannot be sustained.

Cases Cited

Papua New Guinea cases cited

Birch v The State [1979] PNGLR 75.

Didei v State [1990] PNGLR 458.

McCallum v Buibui [1975] PNGLR 439.

Pawa v The State [1981] PNGLR 498.

R v Barker (1956) No 96.

R v Finch (1959) No 146.

State v Fineko [1978] PNGLR 262.

Other cases cited

R v Campbell (1956) 40 Cr App R 95; [1956] 2 QB 432; [1956] 3 WLR 219; [1956] 2 All ER 272.

R v Henry (1968) 53 Cr App R 150.

Counsel

A Raymond, for the State.

T Tamusio, for the defendant.

28 August 1993

DOHERTY J: The defendant was indicted and pleaded not guilty to one count of incest with his daughter on 18 June 1992. There is no dispute that the prosecutrix is the daughter of the defendant. The defendant elected to remain silent, as is his right. He called no witnesses and objected, pursuant to s 13 Evidence Act, to his wife giving evidence for the prosecution. He objected to the admission of the record of interview on grounds of breach of his constitutional rights. That objection was upheld. He cross-examined witnesses at length to the effect that the allegations were fabricated, but he led no evidence to support the allegation of fabrication, or why such allegations would be made against him.

The defence counsel submits that the evidence of the prosecutrix is not corroborated and, therefore, the Court must acquit. He does not refer me to any statute or case law on this point.

The daughter looks young. Her age was not given in evidence. I would estimate it to be 15 years . She did not speak pidgin and comes from a remote area of the province, requiring a journey first to the coast, and then some hours by open boat to Rabaul.

She told the Court she lived with her parents at the time of the offence. She had been sent by the defendant to fetch water in a bamboo container on 18 June 1992. She did not return quickly enough. The defendant met her "half way", beat her, told her he would have sex with her, then did have sexual intercourse with her. There was blood on her laplap. She felt pain. The defendant threatened that if she told anyone he would assault her. She went home and told her mother, who reported it to "the Councillors, who tried to solve that matter". She later ran away to a house in the gardens where two male cousins or uncles were staying. She was afraid of the accused. It appears from evidence she ran away some days after.

From other evidence, it is apparent that a meeting of Councillors intended to resolve the matter became acrimonious. Whether that was the cause of her running off is unclear. In any event, she ran off into the bush because she was scared of her father, and then stayed at the house in the garden. Whilst she was staying there, she said the defendant came in the early hours of the morning. The accused took her away from the house and up to the road. There, she said, "He threatened me with the knife and he did the bad thing again with me." The "bad thing" was explained in examination as sexual intercourse. It was put in her own language in cross-examination and it was made clear in her answers to mean sexual intercourse. If I had any doubts about the meaning, they would have been clarified by an outburst by the accused, who said, "That girl is saying I raped her, but the relatives told her to tell this story."

She reported the second incident to the mother, who took her to the police the next day. That was about 1 August. The girl was not definite on the date, as she lives in a remote area and has had no opportunity of an education. I put no weight on the dates.

An objection to the mother giving evidence was upheld under the Evidence Act.

It was put in cross-examination, and agreed, that the prosecutrix had been staying with an older relative, Elias Kelanum, and the two cousins up to Elias' death. No explanation was given why she stayed there and not with her parents, but such arrangements are not uncommon. After Elias' death, her natural parents took her home, and she stayed with them. It was put to the prosecutrix that these relatives made up the story of the incest. This she denied.

The two cousins were called and gave evidence.

Mutu gave evidence of the accused coming in the night and taking the girl. The accused was angry. It was put to the two cousins that the story was made up. Mutu looked puzzled and confused by the question and answered several times that the accused wanted his daughter back. He appeared to consider that was all there was to say on the subject. Lotu Labot gave similar evidence. It was not put to him that the incest was a fabrication by family members.

It is apparent from the evidence that the Councillors did have a hand in the matters after the first incident and "solved it". The complaint was reported to the Councillors after that first incident; the accused came in the night, as the prosecutrix described, and took her away from her cousins; he was angry; the...