Barker v R [1967–68] PNGLR 204

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, McTiernan J, Taylor J
• Judgment Date: 16 April 1957
• Citation: [1967–68] PNGLR 204
• Judgment Number: No96A
• Year: 1957

High Court: Dixon CJ, McTiernan J, Taylor J

Judgment Delivered: 16 April 1957

1 Criminal law—indecent dealing; Homosexual acts; Evidence—corroboration; High Court

2 Conviction in No92 upheld by High Court; boys were not accomplices; corroboration not required

3 CRIMINAL LAW—Corroboration—Children as accomplices—Accomplice to different offence from that charged—The Criminal Code, s29, s210, s211, s632.

The appellant was convicted in the Supreme Court of the Territory of Papua and New Guinea of unlawfully and indecently dealing with G, a boy under the age of fourteen. G's evidence was unsworn and was supported by the unsworn evidence of another boy aged nine and the sworn evidence of a third boy aged nearly twelve. The offence was alleged to have occurred inside a shower recess in a dressing shed beside a swimming pool. An adult bather gave evidence that he had seen the appellant and a number of boys frolicking in the water, had heard cries from the shower recess followed by the appellant's voice telling the boys to be quiet and had seen the appellant and the boys emerge. The trial judge held that the boys should be treated as accomplices to the offence of indecent practices amongst males, that corroboration of their evidence was necessary, and that the evidence of the adult bather furnished corroboration.

Held:

On appeal by leave, that:

(1) There was insufficient ground for the inference that the children were any more than the unwilling victims of the appellant.

(2) Under s29 of The Criminal Code the capacity of the children to know that they ought not to do the act or make the omission necessary for complicity had to be proved positively before they could be regarded as accomplices.

(3) They should not therefore be regarded as accomplices to an offence under s211 and corroboration of their evidence was not required by s632.

(4) The appeal should therefore be dismissed.

Cases referred to:

R v Sneesby [1951] QSR 26; Davies v DPP [1954] AC 378.

Appeal by Leave.

The appellant appealed by leave from a conviction at Lae by the Supreme Court of the Territory of Papua and New Guinea (Phillips CJ) on a charge that he unlawfully and indecently dealt with Reginald John Gilbert, a boy under the age of fourteen years. The evidence at the trial is sufficiently summarised hereafter.

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By the Court: This is an appeal by leave from a conviction upon indictment before the Supreme Court of Papua and New Guinea. The appellant was tried and convicted by the Chief Justice (Sir Beaumont Phillips) without a jury upon a charge under s210 of The Criminal Code of Queensland which is adopted as part of the law of the Territory. S210 provides that...