The State v John Saganu

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 28 July 1994
• Citation: [1994] PNGLR 308
• Court: National Court
• Year: 1994
• Judgement Number: N1261

National Court: Doherty J

Judgment Delivered: 28 July 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN SAGANU

Rabaul

Doherty J

25-26 July 1994

28 July 1994

CRIMINAL LAW — Rape — Unlawful carnal knowledge — 6 1/2-year-old victim — Consent — Corroboration — Recent complaint.

EVIDENCE — Corroboration — Sexual offences — Evidence of a 6 1/2-year-old victim — Common law rule rejected.

Facts

The accused was indicted on two counts of rape and unlawful carnal knowledge of a girl under 12 years of age. The prosecutrix, now age 7, was called to give evidence. She identified the accused as the man who had sexual intercourse with her. Medical evidence showed that there was penetration in her vagina.

Held

1. The common law rule that very young children should not be called to give evidence does not apply in Papua New Guinea.

2. The common law rule that young children's evidence requires corroboration does not apply in Papua New Guinea, but the court should warn itself of the dangers of acting only on the evidence of a very young child.

3. An offence under s 213 (1) Criminal Code requires corroborative evidence independent of the prosecutrix; therefore, evidence of recent complaint which emanates from the prosecutrix is not of corroborative value but goes to credibility.

4. Corroborative evidence required under s 213 (4) Criminal Code need not be direct evidence of an eye witness.

Cases Cited

Papua New Guinea cases cited

Beraro v The State [1988-89] PNGLR 562.

Birch v The State [1979] PNGLR 75.

Didei v The State [1990] PNGLR 458.

Schubert v The State [1979] PNGLR 66.

Other cases cited

Campbell v R (1956) 40 Cr App R 95.

Wallwork v R (1958) 42 Cr App R 153.

Counsel

N Miviri, for the State.

J Kaumi, for the accused.

28 July 1994

DOHERTY J: The accused was indicted on two counts: the rape of and the unlawful carnal knowledge of a girl under the age of 12 years. Both offences carry a maximum sentence of life imprisonment.

The child in question was approximately 6 1/2 years old at the time of the offence. She was approximately seven years old when giving evidence. Courts are conscious of the necessity of children understanding the meaning of truth and are bound by the provisions of s 6 of the Oaths, Affirmations and Statutory Declarations Act. The implications and the steps that need to be taken have recently been reviewed by the Supreme Court in Beraro v The State [1988-89] PNGLR 562. The child was questioned, after which both counsel indicated that there was no objection to her giving evidence. She was then affirmed.

She gave evidence of events that occurred to her, and she named the perpetrator as John Sepik. She identified the person she knew as John Sepik as the accused. She said he was the person that put her on the ground and had intercourse with her, and she "did not like him."

In indictments laid under the provisions of ss 347 and 216 of the Criminal Code, corroboration of evidence is not a statutory requirement, but it is a matter that the court has to bear in mind. Corroboration is required under s 213 (4) where a count under s 213 is laid. This is such a case. I bear these requirements in mind when considering the evidence in this case. Further corroboration, which again is not statutory, which the court is bound to bear in mind in a case like this is the question of corroboration of the evidence of a child.

Hence, I approach this evidence with the need to have two aspects of corroboration in my mind. Firstly, the corroboration in sexual offences and, secondly, corroboration of the evidence of a child.

EVIDENCE OF CHILD

I have not been referred to any Papua New Guinea case law on the law on the need to have corroboration of children's evidence. It is not a statutory requirement. Halsbury's Laws (4th edn) states at vol 11 (2) para 1144 that it is a rule at common law that the court warn itself about the need for corroboration of children's evidence. The reported Papua New Guinea cases that turn on children's evidence, eg Schubert v State [1979] PNGLR 66 and Birch v State [1979] PNGLR 75, do not deal directly with this aspect of evidence. They stress the need to ensure the child witness understands the meaning of telling the truth and the repercussions on him or her of telling lies.

The English Court of Appeal has dealt with corroboration of children's evidence in Campbell v R (1956) 40 Cr App R 95 and in Wallwork v R (1958) 42 Cr App R 153. These cases are not binding on our courts and depend to some extent on the statutory requirements of the English Children and Young Persons Act 1933, requiring corroboration of the unsworn evidence of a child of tender years before it can be acted upon. The Court in Wallwork v R at p 161 held that, "There must be corroborative evidence if a child of tender years and too young to understand the nature of an oath is called...."

Both these cases deal with the undesirability of acting on only the evidence of a young child. No factual or historical explanation is given for the rule. It may be that the courts consider the children susceptible to suggestion. Mr Kaumi, in cross-examination, put to the child that her father had told her to name the accused, ie that she was open to suggestion — which she denied.

Our courts have stressed they should not adopt the rules of evidence that apply to cultures or cultural conditions and values that differ from Papua New Guinea. I consider that the same caution should be exercised when considering the common law rule regarding corroboration of children's evidence. Clearly, there is no rule admonishing courts not to permit young children being called, as stated in Wallwork v R at p 161, "... in any circumstances to call a little child of the age of five seems to us to be most undesirable...." The child witness in Beraro v The State (supra) was five at the date of trial, four at the date of the incident.

Children are more susceptible to suggestion, have shorter memory recall, and have more vivid imaginations than adults. Care...