The State v John Warkuwo (2002) N2372

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 27 September 2002
• Citation: (2002) N2372
• Court: National Court
• Year: 2002
• Judgement Number: N2372

Full Title: The State v John Warkuwo (2002) N2372

National Court: Lenalia J

Judgment Delivered: 27 September 2002 and 4 October 2002

1 Criminal Law—Several indictments—Charges of common assaults—Charges of indecent assaults and rapes—Two charges of common assaults pleaded to—All other charges not guilty pleas—Trial—Criminal Code (Ch262) s335, s347, s349.

2 Criminal Law—Practice and Procedure—Evidence in totality—Evidence in sexual offences—Corroboration no requirement in law—Corroboration required by practice—Warning on uncorroborated evidence.

3 McCallum v Buibui [1975] PNGLR 439, The State v Andrew Tovue [1981] PNGLR 8, Peter Townsend v George Oika [1981] PNGLR 12, Charles Didei v The State [1990] PNGLR 458, Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279, Thomas Waim v The State (1997) SC519, John Aubuku v The State [1987] PNGLR 267, Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, Paul Mase and Kopa Lore John v The State [1991] PNGLR 88, John Sil Kawage v Gagorine Yube and Stephen Tifai [1976] PNGLR 604, The State v Peter Kaudik [1987] PNGLR 201, The State v Sottie Apusa [1988–89] PNGLR 170, Tapopwa Thomas v The State [1979] PNGLR 139, The State v Kewa Kai [1976] PNGLR 481 and The State v Mitige Neheya [1988–89] PNGLR 174 referred to

___________________________

N2372

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. NO. 29 of 2002

THE STATE

-V-

JOHN WARKUWO

KOKOPO: Lenalia, J.

2002: 23, 27, September

Criminal Law – Several indictments – Charges of common assaults – Charges of

indecent assaults and rapes – Two charges of common assaults pleaded to – All other charges not guilty pleas – Trial – Criminal Code ss. 335, 347, 349 – (Ch. No. 262).

Criminal Law – Practice and Procedure – Evidence in totality – Evidence in sexual

offences – Corroboration no requirement in law – Corroboration required by practice – Warning on uncorroborated evidence.

CASES CITED:

The following cases are cited.

Mc. Callum -v- Buibui [1975] PNGLR. 439

The State -v- Andrew ToVue [1981] PNGLR. 12

Peter Townsend -v- The State [1981] PNGLR. 8

Charles Deidei -v- The State [1990] PNGLR. 458

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

Thomas Wainnin –v- The State (1997) SC. 519

John Aubuku –v- The State [1987] PNGLR. 267

Public Prosecutor –v- Terren Kaveku [1997] PNGLR. 110

Mase –v- The State [1991] PNGLR. 88

John Sil Kanage –v- Gagorine Yupe and Stephen Tifai [1976] PNGLR. 604

The State –v- Peter Kaudik [1987] PNGLR. 201

The State –v- Sottie Apusa [1988-89] PNGLR, 2170

The State –v- Mitige Neheya [1988-89] PNGLR 2174

L. Rangan, for the State

J. Kaumi, for the Accused

DECISION

27 September, 2002

LENALIA, J. The accused is charged upon three separate indictments. The first indictment contains two charges of common assaults pursuant to s. 335 of the Criminal Code. These charges relate to two acts of assaults committed upon his wife Lynda Bata Warkowo. He pleaded guilty to the first charge only whilst entering a not guilty plea on the second one.

On the second indictment, it contains three distinct charges. The accused pleaded guilty to the common assault charge while denying the two indecent charges upon his youngest daughter Lydia Warkuwo on 28th April, and 18th of August 2001 respectively. The common assault took place on 27th April of last year. These charges are brought pursuant to ss. 335 and 349 of the Code.

The third indictment charge six different charges all relating to his eldest daughter Keto Warkuwo. The first three charges relate to three acts of rape whilst the fourth and fifth charges relate two acts of indecent assault. The final charge relates to a common assault. These charges are brought under ss. 347, 349 and 345 of the Code. The accused pleaded not guilty to all charges in the third indictment.

On closure of the prosecution case, Mr. Kaumi of counsel for the accused made a submission of “no case to answer” on which I ruled on the 26th of August that there were cases for the accused to answer on all the charges on which he had pleaded not guilty. On the instance of both counsels, the matter was stood over to this month’s circuit for the defence case.

The defence case consist of evidence by the accused himself admitting to the two acts of assaults on which he had pleaded guilty to one on his wife and the other upon his youngest daughter Lydia Warkuwo. The accused evidence shows he is married to two wives. With Lynda Warkuwo, he has two children whilst, with his other wife, he has six children. He testified to not having a stable relationship with the victims who have brought upon him the charges for which he is now prosecuted. He denied having assaulted his wife the second time and alleged by the State on 26th of April 2001.

Although, the accused pleaded guilty to one count of common assault upon his youngest on 28th April, 2001 he denied having sexually assaulted her on two occasions. On all assaults on which he pleaded not guilty to the accused kept saying there are no medical reports to substantiate the victims allegations. What is clear from the defence case is that, there was prolonged period of absence from the accused by his wife and the two children who later became victims of physical and sexual abuse as put by the State.

The accused’s evidence in relation to the third indictment and the six charges contained therein were totally denied. On charges of rapes, and sexual assaults the accused said these were deliberate lies put up by the two young victims and their mother for not showing up at the Village Court and Councillor responsible to settle their problems. The problems raised in the accused evidence does not seem to be clear as to what actual problems they may have been facing but it would seem to be marital issues.

The two last defence witnesses, James Emori and Johnson Voa are closely related to the accused. The former is the accused’s son and the later is his blood brother. It is quite surprising to note that at the relevant and material times, these witnesses seemed not to be aware of what was going around in and within the family of the accused. The only offences that would have become obvious to the two witnesses were those related to the assaults, but even Johnson Voa whose house is situated some 6 metres away from the accused’s house did not know anything about the accused alleged brutality. James Emori denied hearing or knowing anything about the alleged offences despite sharing one house with the accused and his family. One can understand that given their close proximity, they would actually know something about the accused and his family but the two witnesses for the defence denied this. I must take their evidence to be self-serving.

At the end of the defence case, I heard the lawyers on their final addresses. Mr. Kaumi of counsel for the accused adopted what he submitted on the no case submission and submitted further that, there was no corroborative evidence to support the evidence by the three victims on the charges on which the accused had pleaded not guilty and urged upon the Court that his client should not be found guilty Mr. Rangan of counsel for the State submitted that the State had proven their case beyond reasonable doubt. Mr. Rangan further submitted that on the charges of rape, if the Court finds otherwise, the accused should be found guilty of alternative charges of incest and the Court should return a verdict of guilty on each charges tried.

In practice there has grown up a rule, which recognises that corroboration is necessary in sexual offences. It is not a requirement in law though. Seven of the nine charges pleaded not guilty to are sexual in nature, the other two are common assaults. On the sexual charges, I must warn myself of the dangers of convicting the accused upon the uncorroborated evidence of the two complainants being his, own daughters: Peter Townsend -v- George Oika [1981] PNGLR. 12. Such warnings have been stated and restated in subsequent cases, see also The State -v- Andrew ToVue [1981] PNGLR. 8. On the rule of practice and warnings associated with sexual offences, the Supreme Court in Didei -v-...