Police v Kiap [2002] PGDC 37; DC321 (11 November 2002)

DC321

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 182 OF 2000

Police
Complainant

V

John Kiap
Defendant

Mt. Hagen: M. M. Pupaka
2001:4th Oct., 26 –27th Nov., 20th Dec
2002: 11th November

Criminal Law – Defence of alibi – Notice of alibi defence to be given to prosecution prior to trial – Mandatory notice in trials by indictment – Accused represented by council – Cardinal rule in Browne v. Dunn – Notice not given – Indictable offence – Fairness and interests of justice required notice to be given in a trial in the Grade V Court – Prosecution’s ability to negate alibi defence severely prejudiced – Consequential tie in the evidence almost eminent –Fair inferences impossible.

Criminal trial – Alibi notice not given – Nature of defence not opened through cross-examination of prosecution witnesses – Prosecution severely prejudiced – Fairness – Justice of the case served in declaring a mistrial.

Cases Cited
Browne V. Dunn [1894] 6 R. 67 H.L.
The State V. Ogadi Minjipa [1977] PNGLR 293
John Jaminan V. The State [1983] PNGLR 318.
The State V. Stuart Fancy [1994] PNGLR 548

Counsel
Sergeant Piaku for the Prosecution
Mr Sino for the Accused

11th November 2002

M. PUPAKA, PM: The prosecution case in this was heard but the defence case was not heard for a very long time. The trial started last year but it could not be completed for various reasons which need not be stated. Suffice to say the causes for the delays were quite unavoidable.

The accused was charged that he on the 12th of June 2000 drove a motor vehicle, Mazda 4x4 Reg. No. LAA. 548 at Warapen /Avi along the Sir Okuk Highway, dangerously and caused the death of Epol Wak, thereby contravening of section 328 (5) of the Criminal Code (the Code).

The Facts

On the 12th of June 2000, at around 2.30PM, there was a hit and run accident near the Warapen Bridge at Avi along the Sir Okuk Highway. The victim was run over and fatally injured. The hit and run vehicle was a white dyna type vehicle with tinted glasses and wire grid protector covering its windscreen. The vehicle did not stop. The relatives of the deceased and the police immediately searched for the suspect vehicle. Based on the general description of the vehicle and information from people at the vicinity of the accident the accused and his vehicle were initial suspects. Both man (accused) and vehicle were located three days later. The police arrested and charged the accused over the fatal accident. The accused denied that he or his vehicle was involved in the incident.

The State Case

In the trial the prosecution called 5 witnesses who testified that the hit and run vehicle was the accused’s vehicle, a white mazda dyna truck bearing the number plate LAA. 548. It was further said the accused drove the vehicle at the time of the accident.

The Defence Case

The accused has a simple story which is this: He said he owned the vehicle, the one referred to by the prosecution witnesses. He had, at around the relevant times, a contract to ferry coffee cherries for the plantations at Kindeng & Avi to the factory. He said he would normally travel up and down on any one of two routes, one of them referred to by the prosecution witnesses as the one he followed on the fatal day.

However on the day in question, Saturday the 12th of June 2000, he was informed at Mt. Hagen, just before he travelled to the plantations, that the labours at the plantations and the locals there were involved in a fight. He was told that no one was picking coffee that day. Therefore he and his off-side did not go to the plantations but stayed back in town. He did not go to the plantations on the next day, which was the Sunday (13th June 00). The accused said he went to the plantations early as usual on Monday the 14th of June 2000. He loaded up coffee and then proceeded to the factory. On the way he was met and stopped by relates of the deceased at a place called "Tari Market". He was there first accused of being involved in the hit and run accident of the 12th of June 2000.

The Defence Raised

The accused has testified on oath and intents to call 6 or 7 other witnesses. His defence, as it unfolded in the course of the accused’s evidence, is an alibi. The alibi defence now being mounted seems to be simple and uncomplicated. The accused contents that on that day he was not within the vicinity of the crime. He said he never drove down that way on the day in question (on the 12th of June 2000), either at 2.30PM or at any other time of the day. He referred to the fight between labours and locals on that day at the plantation which prevented him from going to the plantation to do his coffee cartage runs to the factory, as no coffee were picked that day. He also referred to mediations between his people and the deceased’s relatives in town whereat certain findings were made by the Peace & Good Order Committee members. He further provided a plausible explanation as to his whereabouts on the 12th and 13th of June 2000, the days the prosecution witnesses said he was in hiding.

Was there error in the trial process?

As a matter of law there was no real error in the fore part of this trial. However there are at least two things wrong with the conduct of the accused and his council in relation to the defence raised, the assertions made as to the fight at the plantation on the day of accident, the explanation of the accused’s whereabouts straight after the accident, and the reference to mediations between the accused’s and deceased’s lines before Peace & Good Order Committee members after the accident.

Firstly the prosecution were never given notice of the alibi defence. The Court was also not aware that a defence of alibi would be raised. At no stage did the defence seek leave to put up the alibi defence. This accused was charged with an indictable offence though he is being tried summarily. It is a mandatory requirement of Order 4 Rule 4 of the Criminal Practice Rules that an accused give notice that an alibi defence would be raised in criminal proceedings commenced by indictment. The practice in the Grade V Courts (presided over by Principal Magistrates), particularly in trials of accused persons represented by council, is that notices of alibi defences are given to the prosecution. This is in accordance with fairness and in the interests of justice. This practise ensures that there are no surprises in the court room – there should never be any. No party should be allowed to ambush the other in the court room. That is the way our adversarial system of justice works. Therefore, in the circumstances of this case, there was always a need for a proper notice to be given. However no such notice was given.

Consequently the prosecution never had any chance to negate the defence that was to be raised. There is no way the prosecution witnesses would refute evidence, particularly the assertions of fight at the plantation and coffee being not picked on the day of the accident.

I have considered the possibility of placing less weight on the alibi defence. In at least one binding case precedent it was said that ...

"as a matter of fact failure to put the defence of alibi in cross-examination of the State witnesses and a delayed or belated alibi will reduce the weight to be given to the alibi as a defence". (See John Jaminan v. The State [1983] PNGLR 318)

However in this case before me, placing less weight is not appropriate. Either the entire alibi defence is not accepted or the defence will remain as made out. The facts constituting the defence of alibi are such that any reduction in the amount of weight placed on the defence would only amount to rejection of the entire defence. Yet there are no bases to reject the defence in its entirety. In the end the defence, if sufficiently corroborated – and all indications are that it would be corroborated by the remaining defence witnesses – would be fairly made out.

The only way the defence would have been fairly negated is through the prosecution witnesses. Had the prosecution been put on notice and had the prosecutor been aware that the defence was that of an alibi, the witnesses would haven been led to give evidence touching on facts constituting the alibi. That was not done. Any opportunity to do that has been lost for the prosecution. That has brought about a situation detrimental and prejudicial to the prosecution. It was unfair on the prosecution and there has been a substantial miscarriage of justice.

Secondly the assertions of the fight at the plantation, and the accused’s whereabouts straight after the accident, and the mediation sessions were never put to the prosecution witnesses. It was always imperative that the accused and his council, ‘put their case’ to prosecution witnesses to be tested, as it were, and give the prosecution witnesses a chance to negate what are vital aspects of the accused’s defence. The rule in Browne v. Dunn [1894] 6 R. 67 H.L., as adopted and applied in numerous binding precedents in this jurisdiction, was completely ignored. The defence did not put the essence of their case to the prosecution witnesses, such as to give them a fair chance to negate both the defence and these relevant events alluded to by the accused. The events are relevant because they lend credibility and weight to the defence of alibi. The accused was represented by council. It has been said that it is the duty of council to put the defence case to the prosecution witnesses in all fairness. In the case of State –v- Ogadi Minjipa [1977] PNGLR 293 the rule in Browne v. Dunn was adopted and applied. Prentice Dep. C.J. said at page 296:

"Before concluding, I should again mention, as other judges and myself have many times done before, that defence councils do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your cases secret until your client gives evidence. Nor can you expect that his story will receive much credit – if this course be taken. I draw council’s attention again to the old case of Brown v. Dunn (1) (reported in Cockles Cases on Statutes & Evidence in 11th ed. at p. 265) which sets out the duty of council in this regard as understood in the United Kingdom and makes comments as to credibility of the opposing case where this course is not taken. The comments of Lord Herschell, Lord Morris, Lord Halsbury, and Lord Bowen, with respect, appear to me to be plain common sense suitable to and applicable in our courts."

What Prentice Dep. C. J. said underpins the thought that there must always be fair play by all parties in court. What has happened in this case only confirms why. Though I accept Mr. Sino’s explanation that even he too was kept in the dark with regards to the defence to be raised by the accused, I do recall that at some stage in the prosecution case, in response to what seemed needless cross-examining at the time, I intimated that perhaps it was better that the essence of the defence be put to the prosecution witnesses. It was never taken up.

Therefore in all the circumstances there has been a substantial miscarriage of justice. The trial that has been, up to this point in time, was a mistrial. Therefore I must, at this juncture, declare these proceedings a mistrial and order that this trial be stopped in its tracks, and order that there be a fresh trial of this accused before another Principal Magistrate. I must, as a matter of course, disqualify myself from continuing to preside over this case in the fresh trial of the accused. There would no doubt be apprehensions or misapprehensions of bias in the minds of people as to the impartiality of myself and so by authority of binding precedents, for instance see the case of State –v- Stuart Fancy [1994] PNGLR 548 generally, I shall disqualify myself from this case.

Sergeant Piaku: Complainant
Kunai Lawyers: Defendant