The State v John Laurision Birch [1978] PNGLR 79

• Jurisdiction: Papua New Guinea
• Judge: Greville–Smith J
• Judgment Date: 13 April 1978
• Citation: [1978] PNGLR 79
• Court: National Court
• Year: 1978
• Judgement Number: N142

Full Title: The State v John Laurision Birch [1978] PNGLR 79

National Court: Greville–Smith J

Judgment Delivered: 13 April 1978

1 Criminal law—rape and unlawful carnal knowledge—failure to resist and non–consent in case of girl aged about 11 years

2 Evidence—power of trial Judge to order defendant to relinquish possession of incriminating document actually and visibly in court—solicitor–client privilege not attaching to document supplied by prosecution—facts capable of amounting to corroboration

3 Practice and procedure—questioning of prosecution witnesses by trial Judge—question of mistrial

DISCOVERY AND INTERROGATORIES—Production of documents—Inherent jurisdiction of court—Document actually and visibly in court—Document incriminating—Copy record of interview—Copy record of interview supplied by prosecution—Document not privileged—Order for production made.

The court has an inherent power in criminal proceedings and in the absence of a notice to produce, or consent, to obtain documents actually in court, and save in the case of allowable exceptions such as privilege to deliver them to the prosecution.

Held

accordingly, that counsel for the defence in a trial on charges of rape and unlawful carnal knowledge could be required to produce to the prosecution a signed copy of a record of interview actually and visibly in court, which document had been supplied to the accused or his solicitor in accordance with the usual and proper practice by the prosecution and was therefore not a document to which any privilege attached.

Spenceley v Schulenburg 7 East 357 at 358, 103 ER 138 at 139 and Kennedy v Lyell (1883) 23 ChD 387 at 405–406 and R v Adams [1965] VR 563 at 565 referred to.

Trust Houses Ltd v Postlethwaite (1944) 109 JP 12 DC distinguished.

CRIMINAL LAW—Practice and procedure—Witnesses—Control of court over—Questioning by judge—Right of judge—Extent permissible—Interests of justice—Fair trial.

EVIDENCE—Witnesses—Control of court over—Questioning by judge—Right of judge—Extent permissible—Interests of justice—Fair trial.

In criminal proceedings the judge has an overriding duty to secure a trial which is fair to both parties and the community: he has power to intervene by asking questions or calling witnesses, if he considers that course is necessary to the ascertainment of truth or in the interests of justice.

R v Hircock [1969] 1 All ER 47; R v Hulusi and Purvis (1974) 58 Cr App R 378; Jones v National Coal Board [1957] 2 QB 55; R v Hamilton [1969] Crim LR 486; Richardson v R (1974) 48 ALJR 181 at 183; R v Williams [1955] Crim LR 389, and R v Perks [1973] Crim LR 388 referred to.

Held,

accordingly that there had not been a mistrial, where in a trial on charges of rape and unlawful carnal knowledge, the prosecutrix was an immature native girl of about eleven years and a shy, withdrawn and reluctant witness of whom the trial judge, in an endeavour to ascertain the facts, asked numerous questions: no injustice had thereby been done to the accused, no unfairness nor any appearance of injustice, unfairness, bias or hostility to the accused had been done by the court.

CRIMINAL LAW—Particular offences—Rape—Consent—Whether absence of evidence of physical resistance amounts to consent—Finding of non–consent available on alternative grounds—Prosecutrix aged about 11 years—Immature native—Accused in loco parentis—Sufficiency of evidence of non–consent—Criminal Code s357.

In order to prove rape of a girl under the age of sixteen years, it is desirable for the prosecution to prove either that she physically resisted or if she did not that her understanding and knowledge was such that she was not in a position to decide whether to consent or to resist. (R v Harling [1938] 1 All ER 307; 26 Cr App R 127 and R v Howard [1965] 3 All ER 684; 50 Cr App R 56); but the lack of physical resistance will not necessarily imply consent where as a matter of reasonable inference a finding of non consent is available on an alternative ground (such as age, intellect, futility of resistance).

R v Bourke [1915] VLR 289 at 296; R v Camplin (1894) 1 Cox. C.C. 220; R v Young (1878) 14 Cox CC 114; R v Fletcher (1859) Bell CC; R v Lang (1976) Cr App R 50 referred to.

Held

accordingly in a trial on a charge of rape where the prosecutrix was an immature native girl of about eleven years, and the accused a man of some 55 years in loco parentis to the prosecutrix, and where there was no evidence of physical resistance but where there was evidence that she knew of and understood the nature of sexual intercourse, and that sexual intercourse with the accused would be wrong, and where although there was no direct evidence that she had not consented there was evidence from which absence of consent might reasonably be inferred beyond any doubt, that there were sufficient alternative grounds to physical resistance to justify a finding of non–consent.

Trial.

This was the trial of an accused on charges of rape and unlawful carnal knowledge. Facts relevant to the reported principles appear in the reasons for judgment hereunder.

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Greville–Smith J: John Lauriston Birch was indicted on circuit at Kavieng on 10th April, 1978, before me on a charge of committing rape upon one Lavinia Taraban on or about the 20th September, 1977 and also on a second count of on or about the same date unlawfully having carnal knowledge of the said Lavinia Taraban a girl under the age of twelve years. On the 13th April, 1978 after a four day trial, I convicted Birch on the charge of rape, and on the charge of unlawful carnal knowledge. I convicted him, as was open under the provisions of s553 of the Criminal Code, of unlawful carnal knowledge of a girl under the age of sixteen years. I sentenced Birch to imprisonment with hard labour for three and one half years for the offence of rape and one and one half years on the second conviction, to be served concurrently. At the time of conviction I gave a short extempore judgment and stated that after returning to Port Moresby at the end of the circuit I would issue a full written judgment covering also certain matters that arose and were ruled upon during the course of the trial. This I now do.

The State evidence, leaving aside until later the evidence of the prosecutrix, established as follows.

Several years before the date of the alleged offence the father of the prosecutrix (who at the outset of his evidence volunteered an emotion charged statement that he had wanted nothing to do with the prosecution of the accused) gave permission to the accused, whom he had known and worked with for many years and who had been "very good" to him, to take the prosecutrix to live with the accused in the accused's house with an understanding that the accused, a single man then about fifty–five years old, would bring her up, and marry her when she was old enough.

The prosecutrix was the first witness called by the State and it is to her evidence and her behaviour in the witness box, and events arising thereout, that I now turn.

Her demeanour in the witness box from the outset was shy and withdrawn and so it remained throughout. She had been attending a Catholic school and gave evidence under oath. If she were indeed twelve years old it was an immature twelve, otherwise as well as physically.

The prosecutrix's evidence as to what happened on the night in question between herself and the accused opened with the following as I recorded it:

"We finished eating and I went to have my bath then I went to sleep. The defendant went to wash himself. He then went to sleep. I know this as I was about to sleep when he came in."

Having given that evidence the witness declined by silence to answer any further questions asked by the State prosecutor as to what happened thereafter and after a while and repeated attempts by the prosecutor it became apparent that the prosecution had reached an impasse with the witness, and that the State case was on the verge of aborting on her silent refusal to continue with her evidence.

I then asked her why she would not tell the Court what had happened. She responded only with silence. After a long pause to give her every opportunity to reply I then asked her whether anyone had told her not to tell the Court what had happened. This question likewise was not replied to. By that time I had formed the opinion that either she had a powerful psychological block arising generally from the subject matter being referred to or from specific trauma, or that she had been directed not to speak about events which were at the heart of the charges. I had not at that time heard the evidence of the father. There was no appearance of defiance in her attitude, only of distress.

In the circumstances committal for contempt would have been inappropriate, impracticable and probably futile and as...