State v Tapa [1978] PGLawRp 522; [1978] PNGLR 134 (10 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 134 - The State v Joseph Tapa 

[1978] PNGLR 134

N140

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOSEPH TAPA

Waigani

Pritchard J

8-10 May 1978

CRIMINAL LAW - Evidence - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice - Rule inapplicable and inappropriate to Papua New Guinea - Question one of weight of evidence only - Corroboration of one accomplice by another permissible - Principles to be applied generally - Constitution of the Independent State of Papua New Guinea Sch. 2.2(1) and Sch. 2.3(1).

EVIDENCE - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice - Rule inapplicable and inappropriate to Papua New Guinea - Question one of weight of evidence only - Corroboration of one accomplice by another permissible - Principles to be applied generally - Constitution of the Independent State of Papua New Guinea Sch. 2.2(1) and Sch. 2.3(1).

On a charge of breaking, entering and stealing the only evidence implicating the accused in the crime was evidence, not independently corroborated, of two alleged accomplices both of whom had pleaded guilty to the charge before another judge and had been sentenced:

Held

N1>(1)      The common law rule of practice requiring a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice is inapplicable and inappropriate to the circumstances of Papua New Guinea.

The State v. Nataemo Waru [1977] P.N.G.L.R. 152; McNee v. Kay [1953] VicLawRp 2; [1953] V.L.R. 520; and Davies v. Director of Public Prosecutions [1954] A.C. 378 not followed.

N1>(2)      Where a case against an accused rests solely on the uncorroborated evidence of an accomplice, the onus of proof being that the charge must be proved beyond reasonable doubt, the question becomes one of what weight is to be attached to the uncorroborated evidence.

N1>(3)      On the evidence there was corroboration present, albeit circumstantial, which could be relied on.

R. v. Baskerville [1916] 2 K.B. 658 at p. 667 referred to.

N1>(4)      One accomplice may corroborate another; an accomplice being one of a class of witness whose testimony for a variety of reasons, must be closely scrutinized before being accepted.

Director of Public Prosecutions v. Kilbourne [1973] A.C. 729; Boardman v. Director of Public Prosecutions [1974] 3 All E.R. 887; R. v. Scarrott [1978] 1 All E.R. 672; R. v. Rance and Herron (1975) 62 Cr. App. R. 118, and Halsbury’s Laws of England 4th ed. p. 272 referred to.

N1>(5)      The principles to be applied in Papua New Guinea when considering the evidence of accomplices should be:

N2>(i)       An accomplice is an example of what is called a “suspect” witness, as he may be motivated to tell lies about an accused person who is charged in connection with the offence of which he himself is guilty. His reason for telling lies may be:

(a)      He believes he will receive a less severe penalty by putting the blame onto someone else.

(b)      He believes he will receive a less severe penalty by appearing repentant and co-operative with the police.

(c)      He may resent being caught and out of spite tries to blame another whose connection with the crime was only minimal or who may have only been innocently involved.

N2>(ii)      Because an accomplice is a “suspect” witness it is desirable that there be independent corroboration of his evidence.

N2>(iii)     If independent corroboration is not available a court can convict an accused person on the uncorroborated evidence of an accomplice if, having considered the possibility that he may be giving false evidence for any of the above or other reasons, it is satisfied beyond reasonable doubt his evidence of the accused’s guilt is true.

N2>(iv)     If independent corroboration is not available and, because an accomplice is a “suspect” witness, the court has some doubt about the truth of his evidence, the evidence of another accomplice may be used in corroboration if, having considered the possibility that he too may be giving false evidence for any of the same reasons mentioned above and having considered also the possibility that the accomplices may have “got their heads together” to concoct such evidence, the court is satisfied on the totality of the accomplices’ evidence the accused’s guilt is proved beyond reasonable doubt.

N2>(v)      It is not necessary that a court should specify in giving its decision that it has followed the detail of these rules but from a practical point of view, e.g. to avoid unnecessary appeals, it is desirable that it do so.

N1>(6)      A verdict of guilty as charged should be entered.

Trial

This was the trial of an accused on a charge of breaking, entering and stealing contrary to s. 410(a) of the Criminal Code, on which the only evidence implicating the accused was the evidence which was not independently corroborated of two alleged accomplices who had already pleaded guilty to the same charge before another judge and had been sentenced.

Counsel

W. J Karczewski, for the State.

P. Liddle, for the accused.

Cur. adv. vult.

10 May 1978

PRITCHARD J: In this matter the accused has been charged with breaking, entering and stealing K5,497 plus a quantity of coffee, tea, milk and sugar from the office of Hornibrook Constructions Pty. Ltd. (hereinafter called “the Company”) under s. 410(a) of the Criminal Code Act. For the purposes of arraignment, I was informed by Mr. Karczewski, the State Prosecutor, that it was alleged that in the early hours of the morning of 15th December some 12 men broke into the office of the company, broke through the door of the strongroom and therein broke two padlocks on the company safe and from it stole the money and property charged. It was not alleged that the accused was present at the time, the allegations against him personally being that he was the Assistant Paymaster of the company and either aided the principal offenders in the commission of the crime thus becoming a principal offender himself by virtue of s. 7(c) of the Code and in addition, or in the alternative, counselled or procured the principal offenders to commit the offence, becoming a principal offender by virtue of s. 7(d) of the Code.

The factual allegations were that the accused suggested to one David Saura, one of the principal offenders, that the crime should be committed and advised him of how to effect it by telling him where the safe was physically located within the building, how it was secured, what money would be found in it on the night he suggested the theft take place and what section of the building was the best to break into.

These allegations were put to the accused on his arraignment and he pleaded not guilty. In his opening Mr. Karczewski conceded that the case against the accused depended upon the evidence of accomplices, the vital witnesses being David Saura, and the other, less important, one Pala Vagi, both of whom had pleaded guilty to this offence before another judge of this Court and been sentenced to two years eleven months imprisonment.

The first witness was Mr. Ivor Player, an accountant with Hornibrooks at their premises at Spring Garden Road, Waigani. He said the accused had been employed by the company in its pay office on two occasions since 1974 and during the second period was promoted to Assistant Paymaster. On the night of 15th December Mr. Player obtained the cash-box containing a payroll for the company’s employees on the Hiritano Highway from the paymistress and locked it in the safe at 4.30 p.m. The company’s main payroll was made up and paid on the day the money was obtained from the bank but the Hiritano payroll had to be made up and kept overnight as it was taken down to the worksite early on payday mornings. The payroll amounted to K4,321.53. Also in the safe were a number of other cash-boxes, containing a float for casual workers, petty-cash, money for employees short paid, and a foreign exchange float in Australian dollars for the use of the company’s directors. The total amount in the safe was K5,497. Mr. Player said he locked the two padlocks which secured the safe with his keys, the only other keys being those held by the Company Secretary. He also locked the strongroom door, which was fitted with a deadlock. He returned about 10 p.m. that night to take home two employees who were working on a computer input and at that time checked the strongroom door to see that it was secure.

The next morning when Mr. Player arrived at work, the staff were all waiting outside. The break and enter had taken place. He went inside the main office and saw the strongroom door had been jammed open. An adjoining door had also been broken. In the strongroom the padlocks had been snapped from the safe and the various cash-boxes were missing. At the other end of the building a window in the printing office had been smashed in and this had obviously been the break-in point. From this room a long corridor goes down the centre of the building to the general office at the end of which is the strongroom. Off this corridor are a number of offices. Nothing in them or in the general office had been touched. The building at the strongroom end is much more substantially built than at the break-in point, especially the walls of the strongroom itself. Access to the building itself is normally through the main door into the general office. This was also fitted with a deadlock and some 15 staff members, mainly Europeans, had keys. The accused was one of them and he was entrusted with it to enable him to lock up the office when he worked back.

Mr. Player said that on several occasions, two of which he specifically remembered, the Hiritano payroll had not been locked in the safe. On one occasion it was kept overnight by a company employee who was to take it down the Highway early the next morning. This was only two fortnights prior to the robbery. On another occasion the Company Secretary had locked it in his office filing cabinet for some reason. Mr. Player says that the accused was at work on the day after the robbery and in fact made up a list of past employees for the information of the police. He is not certain whether the accused was at work on the Monday but he certainly was not on the Tuesday and never returned. A company employee was sent to his house but he could not be found. He left with several days pay due to him plus pro-rata holiday pay. This was not paid to him until late March or early April this year when he had been released on bail, although his wife had sought to obtain it after the accused was arrested in January this year. In answer to a question in cross-examination concerning the accused’s amicable relationship with other staff members Mr. Player said that these were amicable but sometimes the accused seemed to bear a grudge when the company would not advance him money against his wages. He was averaging then between K100 and K110 per fortnight.

The Works Manager of the company Mr. Crair gave brief evidence of arriving at work on 16th December and seeing the empty cash-boxes from the safe on the ground outside the broken window. There was some loose change lying around and loose pieces of paper. He called the police.

Senior Constable Arisib of Boroko C.I.B. gave evidence that he was involved in the investigation of this matter. He arrested David Saura in Boroko on the afternoon of Monday 19th December. He went to the accused’s house two days later and could not find him. He said that the accused’s house is only about 200 yards away from David Saura’s house at Hohola. The constable telephoned Mr. Player to find that the accused had not been to work. He arrested the accused at Marshall Lagoon on 3rd January this year. He says that the accused’s wife first approached him about obtaining the pay due to the accused by the company about 13th January.

I come now to the evidence of the accomplices. David Saura, aged 20, originally from Kokoda Subprovince, in the Northern Province, gave evidence in Motu. He admitted in chief that he had pleaded guilty to the charge now before me and had been sentenced to 2 years 11 months imprisonment. In cross-examination he admitted the following convictions and punishments:

17.1.74.	Vagrancy — Fined K5.
30.5.74.	Wilful Damage — 3 months imprisonment.
4.7.74.	Wilful Damage — cautioned and discharged.
27.7.75.	Illegally use Motor Vehicle — 4 months imprisonment.
8.8.75.	Escaping — 3 months imprisonment.
14.2.78.	Escaping — 3 months imprisonment, this of course being subsequent to the commission of the present offence.

His story was that before this time he had known the accused for about six months. About two weeks before the robbery he was at his aunt’s house at Hohola drinking with a friend. The accused came in and spoke with him. The accused told him of some money at the place where he worked. He suggested David break into the office and get the money and the two would share. He says the accused told him that the money was in a safe which had no keys, but two padlocks, which side of the building he should enter from and that he should break into the pay office. He says the accused arranged for him to go to Hornibrooks the next day which he did. He says that the accused saw him outside, came out and showed him the part of the building where the money was kept. In support of this evidence David drew a plan which is exhibit ‘F’ before me and on it he has marked the places pointed out to him by the accused and the places where they stood. He went on to say that the accused told him that to get into the strongroom from the general office he had to break through a small door. He said the accused said there would be three to four thousand Kina in the safe, which was the wages for the Hiritano Highway workers. The accused also told David he had a key to the office which David asked him for, but the accused replied that he might be “picked” if the key was lost. David says that after this he went and told Pala Vagi and a number of other friends, whom he named, but who have never been charged. David says the accused told him to break into the office in a fortnight’s time. He says the accused told him to come back on the Thursday night in a fortnight’s time to check that the money was in fact in the safe. He says of the Thursday night of the robbery that he called at Joseph Tapa’s house with Pala Vagi and another man and the accused confirmed that the money was in the safe. He spoke to the accused in their place talk, the Orokaiva language, not in Pidgin nor Motu. These men joined their other friends at the Hohola rubbish dump where they were drinking. They broke into the company’s office at about 3 a.m. in the morning. The next day David Saura says he gave K400 of the proceeds of the robbery to the accused. He says this was payment for the information the accused had given him.

In cross-examination it was put to David Saura that he was telling lies in relation to the accused putting the suggestion of committing the crime to him, in relation to the visit to the accused’s house on the night of the robbery, in relation to the visit to the company’s premises to inspect the building and in relation to his sharing part of the proceeds with the accused.

It was suggested to Saura he had visited the company premises on four to five occasions to borrow money. This was denied. Apart from the visit to inspect the premises, he said he went to see the accused at work on one other occasion only, he being then on his way to meet his brother. The other suggestions of lying put to him in cross-examination were denied by him. No motive was suggested to him for making up these stories and in answer to a question by me he said he had never had any arguments with the accused at all.

Pala Vagi then gave evidence. He is aged 18 from Rigo in the Central Province. He took part in the robbery with Saura and the rest of the group. He likewise had been sentenced to two years eleven months imprisonment. He admitted previously having been in trouble with the courts as follows:

30.10.73.	Break, enter and steal — 12 months bond in the Children’s Court.
15.11.73.	Break, enter and steal — Declared a ward of the Director of Child Welfare in the Children’s Court.
3.5.74.	Escape custody — 2 weeks in hard labour.
14.2.78.	Escape custody — 3 months in hard labour (this being after arrest on this matter).

His evidence again described the movements of the group who carried out the breaking and entering on the night in question. He does not involve the accused in any way except that he was present with David Saura when they visited the accused’s house on the night of the robbery. He does not know what they said to one another as they spoke in their own language. In the early hours of the next morning they broke into the company’s office as David Saura has described. It was suggested that he was lying about the visit to the accused’s house and he denied this. Both he and Saura had been accused of lying when they swore that the accused’s wife was present on the night of this visit. Both denied this allegation.

The accused did not give evidence nor did he call any witnesses, including his wife.

In his first submission Mr. Karczewski pointed out that s. 632 of the Queensland Criminal Code previously applicable in Papua New Guinea, had been repealed. This section which said “A person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices”, was repealed in the former Territories of Papua and New Guinea on 3rd March, 1966. Mr. Karczewski then said that the question posed was what common law was applicable and referred me to the following passage in Davies v. Director of Public Prosecutions[ccxli]¹ where at p. 399 Lord Simonds L.C. said:

“In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. This rule, although a rule of practice, now has the force of a rule of law.”

Mr. Karczewski then went on to submit that this statement of the law was considered by Frost C.J in The State v. Nataemo Waru[ccxlii]². His Honour posed the question to himself at p. 151 of that judgment in these words:

“So the question is whether the common law rule of practice is applicable to the circumstances of Papua New Guinea and in proceedings in which the tribunal of fact is not a jury.”

He went on to say that the usual justification for the requirement of caution in such a case is the “danger that the accomplice will minimize his role in the crime and exaggerate that of the accused”, quoting at that point the Australian edition of Cross on Evidence at p. 211. His Honour went on to say that in McNee v. Kay[ccxliii]³ Sholl J in the Victorian Supreme Court referred to “the temptation to exaggerate or make false accusations”. His Honour referred to the possible desire of an accomplice to do this in order to curry favour with the prosecution. He goes on to refer to a criticism of the rule by Glanville Williams. (Corroboration — Accomplices (1962) Crim. L.R. 588.) His Honour goes on to quote that author as giving as the reason behind the rule that the accused may be telling a deliberate lie from fear or spite. Glanville Williams questions the likelihood generally that a man in the hands of the police would tell a lie merely out of spite, and comments further “That a man will lie in order to minimize his own responsibility for the crime is to be expected; yet this may be no reason for distrusting his evidence if the part he played is admitted by all”. (at p. 588).

N1>Continuing to refer to Glanville Williams, Frost C.J (at p. 151) continues:

“He approves of Wigmore’s view that ‘distrust should be co-extensive with the reason for it’. (op. cit. 591). The rule, it is said, ‘also represents the experience and wisdom of the centuries’. (op. cit. 589). This leads the learned author to make the pertinent observation that, without some qualification, ‘a direction of this kind seems self-defeating; it appears to tell the jury that they are entitled to do what the experience of centuries shows to be dangerous’. (op. cit. 592). I should add that because the rule goes much further and requires proof of corroboration, it goes beyond the caution with which a legal tribunal regards the testimony of a witness who has been convicted of or confesses implication in a serious crime.

Upon this part of the case I have found such references as are available to me of McNee v. Kay[ccxliv]⁴ of assistance. (Australian Digest, vol. 7, pp. 1245, 1246, 1267). I would respectfully agree with Sholl J that the rule of practice is not to be limited to jury cases, but should at common law be applied to any legal tribunal.”

His Honour then considered the question of who is an accomplice for the purpose of the rule, a question I do not have to consider here.

On p. 158 of the judgment his Honour said:

“The final consideration is that the mere fact that the accused has already been convicted ought not to relieve the judge from the necessity of giving the warning because the witness’s evidence at his trial may have been influenced by the temptations referred to. (Cross on Evidence, supra, at p. 213).”

His Honour then dealt with the motivation of the accomplice witness in the case before him to exaggerate or fabricate evidence and said, at p. 158:

“Accordingly, I would hold that the common law rule of practice is clearly applicable to the circumstances of Papua New Guinea upon the facts of a case such as the present — Constitution, Sch. 2.2.(1). But as the matter was not fully argued before me, and it is not necessary for my decision, I express no view as to whether the common law is applicable to the circumstances of Papua New Guinea in its general and unqualified form.”

It should be noted here that despite his Honour’s remarks, what really led to the accused’s acquittal in that case, when one reads the last paragraph of his Honour’s judgment, is that his Honour was not satisfied beyond reasonable doubt that the accomplice before him was telling the truth. I will return to this matter later in this judgment.

Mr. Karczewski went on to submit that it is not necessary for me to decide upon the applicability of the general rule and said the State did concede that the rule as enunciated in Davies’ case (supra) should be applied. As I later indicate, applying it enables me to decide this case without difficulty, but I do not agree that I should have to.

Mr. Karczewski then dealt with the question of corroboration, submitting that on the evidence before me, corroboration was present, albeit circumstantial. He referred to the joint judgment of the Court of Criminal Appeal in R. v. Baskerville[ccxlv]⁵ where it is said at p. 667:

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, ‘implicates the accused,’ compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.

The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is to be found in Reg. v. Birkett[ccxlvi]⁶. Were the law otherwise many crimes which are usually committed between accomplices in secret, such as incest, offences with females, or the present case, could never be brought to justice.”

Mr. Karczewski submitted that the State relied on circumstantial evidence of corroboration in this case in that the accused, being a pay-master, had a key to the office and that Saura knew of that. The visit to the accused the night of the offence to establish the presence of the payroll again is more than coincidence, for as Mr. Karczewski says, “Why carry out the job if the money was not going to be there?”

The modus operandi too, is relied on by the State. The knowledge of the interior of the building by the gang points to their being briefed thoroughly beforehand, and by no-one else than the accused. Saura’s arrest on 19th December only a short distance from the accused’s home and the accused’s failure to turn up to work from that moment on, despite the fact that money was due to him, is another circumstantial pointer.

As a general statement of the law concerning corroboration particularly where accomplices are involved Mr. Karczewski referred to the passage of Lord Reid in Director of Public Prosecutions v. Kilbourne[ccxlvii]⁷ at p. 750:

“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.

In ordinary life we should be, and in law we are required to be, careful in applying this idea. We must be astute to see that the apparently corroborative statement is truly independent of the doubted statement. If there is any real chance that there has been collusion between the makers of the two statements we should not accept them as corroborative. And the law says that a witness cannot corroborate himself. In ordinary affairs we are often influenced by the fact that the maker of the doubted statement has consistently said the same thing ever since the event described happened. But the justification for the legal view must, I think, be that generally it would be too dangerous to take this into account and therefore it is best to have a universal rule.

So when we are considering whether there can be mutual corroboration between witnesses each of whom requires corroboration, the question must or at least ought to be whether it would be too dangerous to allow this. It might often be dangerous if there were only two children. But here we are dealing with cases where there is a ‘system’, and I do not think that only two instances would be enough to establish a ‘system’. Where several children, between whom there can have been no collaboration in concocting a story, all tell similar stories it appears to me that the conclusion that each is telling the truth is likely to be inescapable and the corroboration is very strong. So I can see no ground at all for the law refusing to recognise the obvious. Once there are enough children to show a ‘system’ I can see no ground for refusing to recognise that they can corroborate each other.

Many of the authorities cited deal with accomplices where the rule as to the need of warning that there should be corroboration is similar to the rule with regard to children. I do not think it useful to regard children as accomplices; the rule with regard to children applies whether or not they are accomplices.

In most of the authorities the accomplices were accomplices to a single crime so the danger that they collaborated in concocting their story is obvious, and it is therefore quite right that there should be a general rule that accomplices cannot corroborate each other. Whether that should be a universal rule I greatly doubt, but I need not pursue that matter in this case.”

Although Mr. Karczewski does not submit that Pala Vagi can corroborate David Saura, he does argue that on their demeanour I should accept each as a witness of truth. He says neither tried to either exaggerate or understate the part each played in the commission of the offence, nor that of the accused. Their evidence accords he says, with this not being a “hit or miss” offence. He says also that it is not suggested either had a grudge against the accused or that they had any reason to want to see him convicted, other than a repentant desire to tell the truth. Mr. Karczewski’s other submissions to me were concerning the nature of aiding and abetting, and also counselling the commission of this offence. I will not dwell on these matters.

The submissions of Mr. Liddle for the accused were largely in contradiction of the factual matters argued by the State especially in relation to the credibility of Saura and Vagi, stressing the unsatisfactory nature of the evidence concerning the sharing of the proceeds of the theft. Mr. Liddle stresses that what is relied on as circumstantial evidence is extremely circumstantial, in other words, so unlikely as to be unreliable, and of course places great stress on the fact that both these men are accomplices and the high burden of proof which rests on the State as a result.

Section 632 of the Criminal Code (Queensland adopted) previously in force in Papua New Guinea read as follows:

N2>“632    Accomplices — A person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices”

In Act No. 69 of 1965 applying to the former Territory of New Guinea and in Act No. 70 of 1965 applying to Papua, this section was repealed, the repeal being effective on 3rd March, 1966. Neither Act dealt with any other matter.

The effect of the repeal is clear, that a Court can convict on the uncorroborated evidence of an accomplice, subject of course to the common law rule as set out so clearly in Davies’ case (supra). To my mind an interesting question posed by the repeal is whether, because the section referred also to “accomplices”, the rule that one cannot corroborate the other is also broken down. I will return to this.

Adopting the test for the moment that I must direct myself that it is dangerous to convict on the uncorroborated evidence of an accomplice, and assuming that David Saura’s evidence stood alone, I would convict.

I accept him, accomplice and self-confessed criminal as he is, as a witness of truth and I have no doubt of the veracity of his account of the accused telling him of the regular keeping over-night of the Hiritano Highway pay-roll in the Hornibrook safe. I further have no doubt that the accused suggested that he break into the office to get the money, informed him of the interior lay-out of the building and the strong-room and of the nature of the locks on the safe. I am similarly satisfied that the accused invited David Saura to visit the premises to familiarize himself with them so he could carry out the robbery and that he told him of the amount and description of the money as the Hiritano Highway pay-roll. I am further satisfied that the accused arranged for Saura to check with him the night before the robbery to ensure that the pay-roll money was in fact in the safe and that they in fact met for this purpose. I accept the submissions of the State on the findings it submits I can make on all this evidence. I accept also that Pala Vagi, accomplice though he too is, is a witness of truth and I am satisfied beyond reasonable doubt on his own evidence, that the meeting he described took place.

In relation to the part played by the accused I am satisfied beyond reasonable doubt that within the meaning of s. 7(c) of the Criminal Code he aided and abetted the commission of this crime by acting as I have found he did and similarly, that he counselled the commission of the crime within the meaning of s. 7(d) of the Criminal Code by advising and recommending to David Saura that he should commit it.

The judges of this Court have a clear cut obligation under Sch. 2.3 of the Constitution to develop the underlying law of Papua New Guinea and for this reason I feel in this particular case I should attempt to do so.

Getting down to fundamentals, the onus of proof in a criminal matter is that a charge must be proved beyond reasonable doubt. If the case against an accused rests solely on the uncorroborated evidence of an accomplice the onus of proof remains exactly the same, it does not alter. The question to my mind involves a consideration of what weight is to be attached to such evidence.

Under Sch. 2.2 to the Constitution the principles and rules of common law are to be enforced in Papua New Guinea as part of the underlying law, except if, and to the extent that “(b) they are inapplicable or inappropriate to the circumstances of the country from time to time”.

In the passage from Davies’ case (supra) it is said that the rule of practice has the force of a rule of law. However, all this means is that it is mandatory that the rule be complied with. It is a rule relating to a direction to be given to juries. Papua New Guinea has no juries, and in my view, as night follows day, it is inapplicable in this country for that reason. Whether it is appropriate for a judge or magistrate sitting as a tribunal of fact to direct himself that it is dangerous to convict in such circumstances involves consideration of not only whether he should do so, i.e. in a formal manner, but whether he should do so at all, in other words, is the rule as such appropriate in the particular circumstances of this country. To consider this last aspect first one must look at the origins of the rule itself.

Mention has been made above of the article by Glanville Williams in 1962 Criminal Law Review at p. 588. In this interesting article the author strongly criticizes the rule. At p. 595 he refers to the case of Vernon (which is reported earlier in the same volume at p. 35). In that case the trial judge had warned the jury to treat the evidence of a particular witness with caution as being that of a self-confessed liar and thief, but, since he took the view that the witness was not an accomplice, he did not give the accomplice warning. The Court of Criminal Appeal thought that there was evidence that the witness was a participant in the crime and quashed the conviction for lack of reference to corroboration. The learned author says (at p. 596):

“the court did not go into the question of substance, holding merely that the conviction had to be quashed because the defendant had lost his chance of being acquitted by the jury on a proper direction. It might have been thought that the proper function of a judicial tribunal, both at first instance and on appeal, is to decide whether the defendant is shown on the evidence to have committed a crime, not merely whether the violation of some rigid rule has deprived him of a chance before the jury”.

With respect, I agree. Earlier in this article Glanville Williams commented on the fact that Continental judges have never shared the extreme suspicion of accomplice evidence which the English judges developed. At p. 590 the author sets out a passage from a book On the Evidence of Accomplices by Henry Joy, Lord Chief Baron of the Court of Exchequer in Ireland in which his Lordship made it very clear indeed that it was irrational to reject accomplice evidence merely because of the source from which it came. I will not set out the passage here but it is repeated, and at greater length, by Professor Wigmore in his treatise on Evidence in the chapter discussing uncorroborated accomplices, (3rd ed. par. 2056, the actual quotation appearing in par. 2057). Wigmore’s criticism of the rule is lengthy and in my view completely logical. It is the rule itself which is illogical, simply because it singles out an accomplice, the very person who surely must have the most intimate knowledge of a crime, as requiring corroboration, whereas self-confessed criminals guilty of other most serious crimes and all those persons who for a variety of reasons are motivated to give false testimony, are not similarly treated. The confusion which the rule has created in the American courts is extraordinary as Wigmore in great detail, demonstrates.

Having already said that I believe the rule is inapplicable in Papua New Guinea, the reason I labour at some length on the question of its being appropriate is that in McNee v. Kay[ccxlviii]⁸ Sholl J at pp. 533-534 advances reasons why it should apply to trials before justices or judges sitting alone. One of the cases to which his Honour refers is the Canadian case of R. v. Joseph[ccxlix]⁹ the headnote of that case reads:

“A conviction made by a Judge upon the uncorroborated evidence of an accomplice will not be set aside on appeal because there was no accompanying statement by the Judge that he had in mind an appreciation of the danger of so convicting if it otherwise clearly appears from the record or is made to appear by a report of the Judge pursuant to R. 8 of the Alberta Criminal Appeal Rules that he did in fact have in mind an appreciation of such danger when convicting.”

Examination of the judgment reveals that there is obviously disagreement in the various Canadian States about the rule, and disagreement on the question of whether a judge should be inferred to have sufficient knowledge of the rules of evidence to try a case properly. One court put it (at p. 24) “there is no obligation on a Judge to exemplify his legal qualifications respecting the rules of evidence in trying a case”. Reference was also made to the view of Lord Atkin in Evans v. Bartlam[ccl]¹⁰ (p. 479) where he says:

“For my part I am not prepared to accept the view that there is in law any presumption that anyone, even a judge, knows all the rules and orders of the Supreme Court.”

Because of the confusion this rule has caused, because it has enabled obviously guilty people to escape proper punishment when it has not been strictly complied with, I am convinced it is inappropriate to the circumstances of Papua New Guinea. There is one final reason why I am satisfied this is so. That people in Papua New Guinea who are accomplices may be motivated to tell lies for the reasons advanced for the rule coming into being is true, but my experience in this country has demonstrated clearly that in the great majority of cases, the motivation is simply that the accomplice believes it is unjust that he should be punished when his co-offender is not. As an example, I have even seen a case where a man has been convicted, and due to his protests in gaol, has brought about the arrest and conviction of his own full brother, who was his co-offender, and with whom there was no suggestion he had any sort of grudge.

The next matter I pass to is that of corroboration. Firstly, I would say that I accept and agree with Mr. Karczewski’s submissions on this matter. The other aspect is the problem of whether one accomplice may corroborate another. This rule stood side by side with the major rule concerning accomplices, but over the years it has changed considerably. In R. v. Gay[ccli]¹¹ (at p. 328) it was said by the Lord Chief Justice:

“This court will certainly not hold that the evidence of a number of accomplices needs any less corroboration than that of one accomplice.”

No reasoning is advanced for this fairly blunt statement but examination of the authorities demonstrate that this rule is simply an extension of the major rule. In Director of Public Prosecutions v. Kilbourne[cclii]¹² (at p. 751) it was doubted that the rule was a universal one. That case, a sexual offence, was referred to in other cases of a sexual nature such as Boardman v. Director of Public Prosecutions[ccliii]¹³ and R. v. Scarrott[ccliv]¹⁴ where the rule has been clearly relaxed.

N1>In R. v. Rance and Herron[cclv]¹⁵ which was not a case of a sexual nature it was clearly stated that there is no positive rule requiring the judge to direct the jury that one accomplice cannot corroborate another. The changing trend is perhaps best illustrated by Halsbury. In the 3rd ed., vol. 10 p. 460 it is said:

“Thus the evidence of an accomplice cannot be corroborated by that of another accomplice.”

That was in 1955. In the 4th ed. (1976) that sentence has been deleted and the following appears at p. 272 (par. 457):

“In many cases it would be unsatisfactory to regard the evidence of one accomplice as corroborating that of another accomplice but there is no general rule that witnesses of a class whose evidence requires a warning as to corroboration cannot corroborate one another.”

A little further on it is said:

“Additionally, it is desirable that a similar warning be given to the jury about the evidence of any principal witness for the prosecution where the witness can reasonably be suggested to have some special purpose of his own to serve in giving false evidence.”

This to my mind is commendably sensible and in my view accomplices, when such caution is adopted in viewing their evidence, are brought back to where I believe they should always have been, namely one of a class of witness whose testimony for a variety of reasons, must be given close scrutiny before a court will accept it.

In the case before me I accept David Saura as a witness of truth. I accept Pala Vagi as a witness of truth. How can it be said the latter does not corroborate the former when the fact is, accepting each of them as truthful witnesses, he does. I suppose I reach the Gilbert and Sullivan situation (Gondoliers Act 1) “A tale so free from every doubt — all probable, possible shadow of doubt — all possible doubt whatever!” An inappropriate text I suppose, and similarly inappropriate to Papua New Guinea, I hold the rule under discussion to be.

In an attempt to develop the principles upon which courts in Papua New Guinea should consider the evidence of accomplices I propound the following rules. I do so in the hope that we can avoid in the future the confusion which has developed in the courts of other countries, bearing in mind the fundamental principle that an accused person must be protected from being convicted on evidence which may be fabricated.

N1>1.       An accomplice is an example of what is called a “suspect” witness, as he may be motivated to tell lies about an accused person who is charged in connection with the offence of which he himself is guilty. His reason for telling lies may be:

N2>(a)      He believes he will receive a less severe penalty by putting the blame onto someone else.

N2>(b)      He believes he will receive a less severe penalty by appearing repentant and co-operative with the police.

N2>(c)      He may resent being caught and out of spite tries to blame another whose connection with the crime was only minimal or who may have only been innocently involved.

N1>2.       Because an accomplice is a “suspect” witness it is desirable that there be independent corroboration of his evidence.

N1>3.       If independent corroboration is not available a court can convict an accused person on the uncorroborated evidence of an accomplice if, having considered the possibility that he may be giving false evidence for any of the above or other reasons, it is satisfied beyond reasonable doubt his evidence of the accused’s guilt is true.

N1>4.       If independent corroboration is not available and, because an accomplice is a “suspect” witness, the court has some doubt about the truth of his evidence, the evidence of another accomplice may be used in corroboration if, having considered the possibility that he too may be giving false evidence for any of the same reasons mentioned above and having considered also the possibility that the accomplices may have “got their heads together” to concoct such evidence, the court is satisfied on the totality of the accomplices’ evidence the accused’s guilt is proved beyond reasonable doubt.

N1>5.       It is not necessary that a court should specify in giving its decision that it has followed the detail of these rules but from a practical point of view, e.g. to avoid unnecessary appeals, it is desirable that it do so.

For all of the above reasons I find the accused in this matter guilty.

Verdict: Guilty of breaking, entering and stealing.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.

> R>

[cc/span>[1954] A.C. 378.

[ccxlii][1977] P.N.G.L.R. 152.

[ccxliii][1953] V.L.R. 520.

[ccxliv][1953] V.L.R. 520.

[ccxlv][1916] 2 K.B. 658.

[ccxlvi]8 C. & P. 732.

[ccxlvii][1973] A.C. 729.

[ccxlviii][1953] V.L.R. 520.

[ccxlix][1939] 3 D.L.R. 22.

[ccl][1937] A.C. 473.

[ccli](1909) 2. Cr. App. R. 327.

[cclii][1973] A.C. 729.

[ccliii][1974] 3 All E.R. 887.

[ccliv][1978] 1 All E.R. 672.

[cclv](1975) 62 Cr. App. A. 118.