State v Tanedo (Third Interlocutory Judgment) [1975] PGNC 7; N10A (27 October 1975)

Unreported National Court Decisions

N10A

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
TANEDO

Port Moresby

Prentice DCJ
13 October 1975
15-17 October 1975
20-24 October 1975
27 October 1975

THIRD INTERLOCUTORY JUDGMENT

PRENTICE DCJ: At this stage the Statecals called all those who witness to the alleged conspiracy which is the subject of the charge. It now proposes to call a further five witnesses to give evidence of what has been characterised in the textbooks as “similar facts”. Argument has been presented as to the admissibility of this evidence, and as to whether even if admissible, it might not nevertheless be so prejudicial to a consideration of the facts in issue as to render it desirable, in the exercise of a judicial discretion, that it be excluded.

The prosecutor claims three bases for the admission of the evidence. He says firstly that it will show a striking case of a system being indulged in by the accused. Secondly, he says that the evidence will disclose a plurality of accusers, persons who speak as to mercenarily corrupt approaches made to them by the accused a plurality such as would render it improbable that an intrigue has been contrived to bring untrue criminations as to the facts in issue in this case, against Mr. Tanedo Thirdly, he claims that the evidence may be called to rebut innocence of association or transaction as between the accused and Tyskiewicz.

It is said that stories will be told of Mr. Tanedo making approaches to suggest the purchase of equipment by the witnesses which would later be handed over to him on the basis of his having shown favour to the purchasers (presumably in or about the award of P.W.D. contracts). Defence counsel has reminded me of what I said in Reg v. JamiesonN10A.html#_edn39" title="">[xxxix]¹ in attempting to summarize the effect of Evatt, J’s judgment - wrongly attributing it to Dixon, C.J. in Martin v. OsborneN10A.html#_edn40" title="">[xl]²; to the effect that in deciding such such questions, the degree of a resemblance and the connection between the fact in issue and the fact sought to be adduced in evidence must be closely examined.

This area of the law has recently received further illumination from the speeches of the Lords in Boardman v. Director of Public ProsecutionsN10A.html#_edn41" title="">[xli]³.

Mr. Wall contends that at their strongest the facts now sought to be proved, might amount to attempts to produce improprieties, but do not go to establish the commission of crimes. Evidence of entering into agreements similar to that being alleged here, might he says, have been admissible under the suggested rule, but not evidence of mere attempts or other overt acts. This evidence is not connected he says, in any relevant way to the transactions with Tyskiewics. It is not enough he says, even under any wider approach that might be allowed by Boardman’s caseN10A.html#_edn42" title="">[xlii]⁴ (supra) to show “marked unusual features” in other transactions sought to be evidenced - identical features would have to be pointed to.

The pattern which has been developing here in the shape of cross-examination, is that the accused denies conversations which could be held to be improprieties, the giving of promises of favours to be received, or of making any preferments; it is suggested that the stereo equipment concerned was paid for by the accused, that there was no corrupt association involving quid pro quo for gifts such as could be construed as a conspiracy. It is clear that the accused has charged the witness Tyskiewicz with falsehoods; and that he alleges he himself is the victim of persecution.

I am satisfied that the evidence now challenged is admissible under the second proposition of Lord Herschell in John Makin and Sarah Makin v. The Attorney-General for New South WalesN10A.html#_edn43" title="">[xliii]⁵ viz., to rebut defences otherwise open to the accused; in particular to rebut innocence of association or persecuting conspiracy against him by the witnesses to the facts in issue. Another way of looking at it as admissible I consider, would be to view it as relevant to exclude the possibility of mistake or malice on the part of Tyskiewicz and other witnesses, or of mistake in procedures or misunderstanding on the part of the accused.

In addition, it has I think, been shown in opening on this subject, that the additional evidence relates to facts with markedly similar characteristics to those the subject of the charge, in the accused’s practice (system) in regard to P.W.D. contracting, such as would render it admissible as going to establish intention and state of mind.

It does not appear to be necessary to me to do so, but I would conclude from a further reading of Boardman’s caseN10A.html#_edn44" title="">[xliv]⁶, (supra) that the House of Lords now recognises a somewhat wider basis for the reception of “similar facts” evidence. Despite the forceful argument of Mr. Wall to the contrary, I do not think the rule allowing such admission is to be restricted in its application to cases where proof of other criminal acts is sought to be given; I consider it may extend to cases such as the present, where the evidence could establish at most, attempts to procure commission of criminal acts. Thus, acts showing inclination of affection, acts showing particular tendency to prove meeting by assignation (and not be coincidence), facts showing coincidence of story; have been allowed to be admitted under the rule (Lord Hailsham - Boardman’s caseN10A.html#_edn45" title="">[xlv]⁷ (suprapage 904). I would held hesitate to attempt a summary of the speeches of the Lords in Boardman’s caseN10A.html#_edn46" title="">[xlvi]^{8Sim’s caseN10A.html#_edn47" title="">[xlvii]9 as was used in the summing up in Boardman’s caseN10A.html#_edn48" title="">[xlviii]10; (supra) it would seem to be approachingproposition that where three or four charge an accused with with acts strikingly similar to those the foundation of the instant charge, the evidence of these, being non-conspiring accusers, would be relevant and possibly overwhelming in establishing the likelihood of the veracity of the instant charge.}

I do not think that the admission of this evidence now sought to be tendered, would prejudice consideration by me of the facts in issue and thereby outweigh its probative value. Rather I think, to adopt the words of Lord Cross of ChelseaN10A.html#_edn49" title="">[xlix]¹¹ - the citances are such thah that the “evidence is so very relevant that to exclude it would be an affront to common sense.”ink the evidence sought to be tendered could have a material bearing on the issues to be debe decided; and that the facts sought to be proved, potentially amount to more than isolated instances of the same kind of behaviour. Looking to the two requirements of fairness and justice; I think the challenged evidence appears sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it be admitted. I will allow the admission of the evidence.

Solicitor for the State: L.W. Roberts-Smith, Public Prosecutor.

Counsel for the State: B.M. Ryan. B.T.J. Sharp.

Solicitor for the Accused: N.H. Pratt, A/Public Solicitor.

Counsel for the Accused: C.F. Wall. A.J. Alpine.

N10A.html#_ednref39" title="">[xxxix]^{Unreported 698}

N10A.html#_ednref40" title="">[xl]^{[1936] HCA 23; 55 C.L.R. 367}

N10A.html#_ednref41" title="">[xli] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref42" title="">[xlii] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref43" title="">[xliii]^{(1894) A.C. 57 at 65}

N10A.html#_ednref44" title="">[xliv] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref45" title="">[xlv] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref46" title="">[xlvi] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref47" title="">[xlvii] ^{(1946) K.B. 531 at 539-40}

N10A.html#_ednref48" title="">[xlviii] ^{(1974) 3 All E.R. 887}

N10A.html#_ednref49" title="">[xlix] ^{(1974) 3 All E.R. 908}