The State v Simon Ganga

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 07 June 1994
• Citation: [1994] PNGLR 323
• Court: National Court
• Year: 1994
• Judgement Number: N1232

National Court: Sevua J

Judgment Delivered: 7 June 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SIMON GANGA

Lae

Sevua J

25-26 May 1994

7 June 1994

EVIDENCE — Cross-examination — Need to cross-examine on case which defence relies on — Rule in Browne v Dunn — Principle of fairness applied.

EVIDENCE — Rape — Corroboration — Caution in acting on prosecutrix's uncorroborated evidence — Truth and accuracy of prosecutrix's evidence — Nature and circumstances of the place.

Facts

The accused was indicted on one count of rape. He did not indicate to the prosecution and the Court what his defence was until late in the proceedings. Therefore, the prosecutrix was not given an opportunity to refute or deal with the accused's defence of "consent". The Court reviewed extensively the rule in Browne v Dunn.

Held

1. Having warned itself of the danger of convicting on uncorroborated evidence, the Court found the prosecutrix is a witness of truth.

2. Accused is not witness of truth and is convicted of rape.

3. The nature and circumstances of the place and time could amount to corroborative evidence.

Cases Cited

Papua New Guinea cases cited

Didei v The State [1990] PNGLR 458.

McCallum v Buibui [1975] PNGLR 439.

State v Awoda [1983] PNGLR 83.

State v Guma [1976] PNGLR 10.

State v Kalabus [1977] PNGLR 87.

State v Merriam [1994] PNGLR 104.

State v Minjipa [1977] PNGLR 293.

State v Tovue [1981] PNGLR 8.

State v Varimo [1978] PNGLR 62.

State v Voeto [1978] PNGLR 119.

Townsend v Oika [1981] PNGLR 12.

Other cases cited

Allied Pastoral Holdings P/L v Commissioner of Taxation [1983] 1 NSWLR 1.

Browne v Dunn (1893) 6 R 67 (HL).

Bulstrode v Trimble [1970] VR 840.

Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279.

Kelleher v R (1974) 48 ALJR 502.

R v Davy [1964 — 65] NSWR 40.

R v Hart (1932) 23 Cr App R 202.

R v Robinson [1977] Qd R 387.

R v Walczuk [1965] QWN 63 n50.

R v Witham [1962] Qd R 49.

Reid v Kerr (1974) 9 SASR 367.

Thomas v Van Den Yssel (1976) 14 SASR 205.

Counsel

R Saranduo, for the State.

J Appa, for the defendant.

7 June 1994

SEVUA J: On 26 May, I gave brief reasons for my decision upon convicting the accused and undertook to publish my reasons in full later. This I now do.

The accused was indicted with one count of rape and pleaded not guilty. The facts of this case, which were not in dispute, are these. On the evening of Tuesday 22 June 1993 at approximately 4:45 pm, the prosecutrix walked to the bus stop at 5 Mile near Lae to catch a PMV to 40 Mile (past Nadzab Airport), where she was employed by Moale Trading. Whilst she waited for a PMV, the accused drove to the shop at 5 Mile to refuel. The prosecutrix walked over to him and asked for a lift to 40 Mile. The accused is known to the prosecutrix, since his daughter works with her. That was the reason she had asked him for a lift. On the way to 40 Mile, before Nadzab Airport, the accused turned into Gabsongkeg Village to give some money to his aunt. After this, they left the village, but instead of following the road they had taken to the village, they took a shortcut toward Nadzab Airport. Along the way, at an old, disused air strip, the accused stopped the vehicle, alighted, walked to the other door of the vehicle, opened it then said to the prosecutrix, "Let's have it here." From this point onward, the evidence of the two parties differed.

I should, at the outset, note that up to the close of the State's case, there was no indication as to what the accused's defence was. In fact, prior to the State calling it's third and last witness, I had intimated to defence counsel that the Court and the State were not aware of what defence the accused was raising, although I made it quite clear that he was not obliged to tell the Court what his client's defence was. It was evident from the cross-examination of the prosecutrix that none of the defences normally raised in rape trials were ever raised. I will canvass this aspect later.

I will now return to the point in time when the accused stopped his vehicle on the disused airstrip.

The prosecutrix said that when she realised the accused wanted to have sexual intercourse with her, she refused. However, the accused pushed her down onto the seat. She said to him, "I know you through your daughter", but he did not listen to her. He lifted her skirt and pulled her pants down to her legs. He opened her legs apart and had sexual intercourse with her. She screamed for help, but there was no one around. After he ejaculated, he got dressed and she got dressed, and they drove to 40 Mile. She was dropped off at the main gate by the accused, who later drove to his village, Chifasing. The prosecutrix walked straight to her boss, Nelson Turi, and complained of what the accused had done to her. Mr Turi instructed his security guard to contact Chifasing police, who came and took the prosecutrix to Mutzing Hospital that same night. The nurse was not available. The next morning, the prosecutrix was examined by Sister Veronica Waffi, who noted bruises on the cervical mouth. A cervical smear was obtained an tested at 9:07 am. The test for presence of sperm was positive.

During cross-examination, the prosecutrix said she tried to alight from the vehicle, but the accused blocked her way. She said she tried to turn aside so as to avoid sexual intercourse, but the accused pushed her down. She tried to push him away to avoid penetration, but the accused, being a man and stronger than her, succeeded in overpowering her. In other words, she became helpless and defenceless against the physical might of the accused, who looks three times bigger and twice taller than the prosecutrix.

Earlier on, I adverted to the fact that during cross-examination of the prosecutrix, the defence counsel had failed to put the accused's defence to her. At the beginning of the defence case, when I asked Mr Appa what the accused's defence was, he replied that it was consent. I said that if that was the case, he had not put that defence to the prosecutrix during cross examination. Asked if he was aware of the rule in Browne v Dunn, he said he was not. I will revert to this rule later, when I discuss the relevant law relating to it.

Nelson Turi and another witness, Greg Baing, said that it appeared the prosecutrix had been crying for a long time. She appeared very upset and was crying when she first complained to these two witnesses, who were her immediate supervisors. Her clothes were all wrinkled up.

The accused's evidence was this. He came to Lae and, on his way back to Chifasing village, he stopped at 5 Mile to refuel. The prosecutrix asked him for a lift, and he said he had something to do at Gabsongkeg village. Along the way, they told stories. After they had driven to Gabsongkeg village and he had given money to his mother, they left the village via a "short cut". He told the prosecutrix they would drive around or "spin around". Then, he said the prosecutrix, "told me to go down and she lied down inside the cabin, and after we did it we went to 40 Mile."

The accused said he did not use any force, the prosecutrix did not scream or struggle, she wanted K30 in return for sex and refused to accept K10 offered to her, she was his girlfriend, and she had gone with him to and from Lae on previous occasions.

In cross-examination, the accused admitted he was a married man with five children and that he knew he was committing adultery. He said that as they left Gabsongkeg Village they discussed sexual intercourse, and the prosecutrix had agreed to taking the shortcut. They had discussed and agreed to sexual intercourse before they left the village. He denied lifting her skirt and said he helped the prosecutrix pull down her pants. He did not force her; rather, she consented to sexual intercourse. In other parts of his evidence in cross-examination, the accused said he had given the prosecutrix a lot of money previously because she was his girlfriend. For that reason, he felt it was fair he had sexual intercourse with her, although they had never had sexual intercourse previously. He maintained that the prosecutrix had consented to sexual intercourse.

Following his evidence, the accused's counsel indicated that the accused had two more witnesses to call; however, "contrary to instructions and unknown to me, they were sitting in court as the accused gave his evidence." He would like to call only one of them. Basically, their evidence would be that the prosecutrix had in the past travelled with the accused to and from Lae. Mr Saranduo objected to the defence calling these two witnesses, and the objection was upheld. That was the end of the defence case.

Mr Appa has submitted that, whilst his client does not deny sexual intercourse, it was with the prosecutrix's consent. In essence, that is counsel's brief submission. When asked if he could address the Court on his failure to put his client's defence to the prosecutrix, as required by the rule in Browne v Dunn, he said his failure was a result of his ignorance of the rule. He said this was his first criminal trial. I am very concerned at the implication of counsel's remarks because, to me, it amounts...