Mangaeva v Kapiwan [1976] PGNC 1; N24 (13 February 1976)

Unreported National Court Decisions

N24

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 188 OF 1975 (P)
OA MANGAEVA
V
NIXSION KAPIWAN

Port Moresby

Prentice DCJ
10 February 1976
13 February 1976

ASSAULT

LOCAL COURT - Laying of charge not evidence of guilt - Belief of complainant not relevant to prove assault - Presumption innocence.

PRENTICE DCJ: At the hearing of this matter, there being no objection by the respondent, I allowed the addition of a further ground of appeal viz:

“That the learned Local Court Magistrate erred in law in that in questions asked by him of the appellant during evidence given by the appellant he has appeared to reverse the onus of proof from the prosecution to the defence.”

In the event this has been propounded as the principal ground of appeal.

The appeal is from the Local Court at Bereina.

The only direct evidence of involvement of that appellant in the alleged assault was that of the Committee Kai Lau. It is clear that the complainant while speaking of having been hit, was unable to identify the appellant as his attacker.

The appellant gave evidence on his own behalf on oath, and called one Steven Ogogo. Though in answer to the question “is that true you struck the complainant with a stick”, it is recorded that the appellant said “I don’t know”; the magistrate accepted (as appears from his reasons for judgment) that the appellant denied striking the complainant.

The learned magistrate cross-examined both the appellant and Steven Ogogo. The following questions and answers were recorded as to the appellant:

Q. Why you were here before this Court?

A. Because I was there.

Q. Why others were not there before this Court but you?

A. I don’t know.

Q. If you were innocent you think you would come to Court?

A. If I were innocent I won’t be here.

Q. Why Koea only pick you among many who is responsible for killing Kone To’oro?

A. I think they were telling lies.

Q. You think a person can come to Court if he is innocent?

A. No.

Q. Now you say no, but why you come to Court?

A. I think they are liars.

And as to Steven Ogogo:

Q. You know why the defendants before the Court?

A. I would not.

Q. If he is an innocent you think he would come to the Court?

A. He wouldn’t come if he was innocent.

Q. In that case he must have involved in the fight?

A. Might be but I did not see him.

It is of course a first principle of the administration of justice in Papua New Guinea that a prosecutor must prove his case against a defendant beyond any reasonable doubt. There is a presumption in the first place of innocence in the accused. The fact that a private citizen or a policeman brings a prosecution against a person is not to be taken as of itself providing evidence of the accused’s guilt.

The learned magistrate in my opinion, shows by his questions that he has applied a wrong principle - he has assumed that the mere laying of the charge, the bringing of the accused to Court, goes towards showing the accused’s guilt. In addition, in his reasons for judgment he states:

“although Kone To’oro did not see who hit him but he strongly believed the fact that he was strike by the defendant Oa Mangaeva.”

The belief of Kone is of course irrelevant. It is only what he saw and heard done that is of value in deciding whether the accused were guilty.

Undoubtedly the Committeeman Kai Lau gave evidence which coupled with observation of him and acceptance of him as an honest and reliable witness, could have justified a conviction. But this is a case of Kone’s oath against the accused’s. The magistrate appears to have allowed himself to be swayed by these wrong considerations (of the significance of the charge having been laid, and of Kai’s belief) into deciding to accept Kai’s evidence.

In the circumstances the conviction, having been arrived at on wrong principles, is unsafe and cannot be allowed to stand. Being satisfied that a substantial miscarriage of justice has been demonstrated (s.43(3) Local Courts Act) I allow the appeal. I quash the conviction and fine. In the circumstances I do not think there should be a re-hearing. The fine is to be returned to the appellant.

Solicitor for the Appellant: N.H. Pratt, Acting Public Solicitor.

Counsel for the Appellant: A. Alpine.

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

Counsel for the Respondent: S. Passingan.