Noho v Proy Vaii [1979] PGNC 6; N188 (23 March 1979)

Unreported National Court Decisions

N188

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
BETWEEN: KARU NOHO
APPELLANT
AND: PROY VAII
RESPONDENT

Waigani

Greville Smith J
23 March 1979

GREVILLE SMITH J: On the 18th July 1978 the appellant Karu Noho aged seventeen years was, in the District Court, Port Moresby, convicted, after a plea of not guilty on a charge of illegally using a motor vehicle without the consent of the owner contrary to the provisions of s. 434 of the Criminal Code and sentenced to imprisonment with hard labour for two months.

Against that conviction he has appealed to the National Court.

At the hearing of the appeal counsel for the appellant, Mr. Nwokolo, intimated that he would seek leave to place before this court affidavit evidence by the appellant and one other person which had not been adduced before the District Court, but at my suggestion deferred such application until the evidence adduced before the District Court had been considered and, in the event, found it unnecessary to pursue such application.

In considering the crux of this matter it is desirable to begin with a short statement of certain general and well-settled rules as to the burden of proof in criminal cases. The leading rule is, of course, that it is for the prosecution to prove, and to prove beyond any reasonable doubt, every element of the alleged offence, (Woolmington v. The Director of Public ProsecutionsN188.html#_edn149" title="">[cxlix]¹). The rule applies even to negative elements as, for instance, absence of consent in cases of rape. The prosecution must prove, except in cases of statutory reversals of onus of proof (with which we are not concerned here but of which the provision in section 26 of the Criminal Code relating to the defence of insanity is an example), every fact, whether affirmative or negative which forms an ingredient of the offence.

However, matters of defence, as distinguished from mere denials of allegations requiring to be made by the prosecution, do not arise for consideration unless there be, either in the evidence for the prosecution or in evidence adduced by the accused, a sufficient foundation of fact upon which they may be based. But once the necessary foundation has been laid in support of the allegation made by the accused the question becomes not whether the allegation has been proved, but whether on the whole of the evidence the prosecution has proved guilt beyond reasonable doubt. The final onus is on the prosecution, and, if the matter relied upon by way of defence raises a reasonable doubt as to guilt, the accused must be acquitted.

To put it another way, once the defence is adequately raised on the evidence then if it is not negatived beyond any reasonable doubt the prosecution cannot succeed.

This is the fundamental rule laid down in Woolmington’s case. Subject to the exception already mentioned the reasoning is of universal application. In Woolmington’s case the rule was applied directly to a defence of accident and it was made clear that it would apply equally to a defence of provocation. It has been applied to the defences of self-defence and alibi (Regina v. LobellN188.html#_edn150" title="">[cl]²) and (Regina v. JohnsonN188.html#_edn151" title="">[cli]³), and it is applicable to all the defences except insanity which may be raised under the provisions of Chapter V of the Criminal Code, including Section 24.

It is also now settled law that if there is evidence of a particular defence, even though it has not been specifically raised by the accused, the court should not convict unless satisfied that that defence has been disproved (Palmer v. ReginaN188.html#_edn152" title="">[clii]⁴).

Returning now to the appeal in hand, s. 24 of the Criminal Code provides as follows:

“24. & Mistake of Fact - At - A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of thin not nally responsible for the act or omission to any any greater extent than if the real statestate of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

The first witness for the prosecution, the owner of the vehicle, gave evidence in effect that on the night in question the vehicle was taken from a shed near his house without his knowledge or consent. Under cross-examination he was asked, and answered, as follows:

“Q. ټ Du see tsee the defe defendant take the vehicle?

A. ;ټ N60; No but but two small boys saw the defendant take the vehicle.”

This reply was hearsahearson he and, with dith due respect, should not have been recorded by the Magistrate. In any eany event vent “take the vehicle” was in context, a loose and ambiguous expression and it was not said or suggested that the defendant was seen to take the vehicle from the shed. This witness also said in cross examination:

“I asked defendant did he take it, defendant said yes, he thought Sibona had permission.”

Evidence was also given by two Police officers Proy Vaii and Cyrin Dawan. The firstnamed stated that he questioned the defendant the day after the offence and that in the initial questioning, before a Record of Interview was commenced, the defendant said:

“I stole the vehicle.”

He was asked in cross-examination whether the defendant had said that he “stole” the vehicle, or that he “used” the vehicle and he replied “stole the vehicle”.

The other police officer was without objection asked in examination in chief:

“Did you hear defendant admitting to stealing the vehicle?”

and replied:

“Yes”,

but when asked in cross-examination:

“Did the defendant say he “stole” or “used” the vehicle?”

he replied:

“Defendant said he had used the vehicle.”

It is true that where two prosecution witnesses give conflicting testimony it is open to the court, if circumstances so warrant, to accept the evidence of one of them as the reliable version, but in the very short evidence given by these officers, amounting to less than one hundred words in each case, I can see nothing that might reasonably have formed a basis for prefering the evidence of the one to the evidence of the other, nor do I think any significant differences in demeanor could have emerged under such circumstances, with the result that in my view the evidence that the defendant said he stole the vehicle should have been given no weight, unsupported as it was by any other evidence. In addition, in the taking of a Record of Interview by the same police not too long afterwards the matter of this alleged admission, which was in conflict with the whole tenor of the accused’s statements recorded therein, was never raised by the Police to the accused as it should and, in my opinion, would have been had it been made.

The Record of Interview was received in evidence and it disclosed that the accused told the Police that on the night in question he was on his way home from a party when he met a friend one Sibona Noko. The Record of Interview continued:

Q. ҈ The time you two mewo met each other on the road where did you two fellows go?

A. ـ&#160wene t peron fron frs uncle.

Q. What dhdt did hii unis uncs uncle sale say to him?

A. ;ټ I#82kn;t anyw ing hing about two of them them.

.

Q

Q. ـ҈ D60; Did youd your friend come back from his uncle?

A. ټ&##160;; Yes.

Q. &#160  he say any hing to you?

?

A. ҈ N60; N>

Q. ;#1600;#1660; W60; Where did you two go?

A.  ټ I wasingiting for him at t at the school area, and abouor 20tes later s comn the

Q

Q.&#16. < &#Wh0; as drivinriving thig thig this bus?

A. Sibona woko ris dg tins buis bus.

Q. ټ&##160; Y60; Your frur friend drove this bus, did he come and stop near you?

A. ҈&&#1Ye>

60;&##160##160; ʔ 1hereWhereWhere did did did you two go?

A. &##10;&  We were going io Ga ty we y we ut of petrol.

Q.  ..>

A.&#>A. &160;  ....

A. & H60; His uncle.

Q. & D60; Did ther ofcar sright to use this Toyota Hi Ace?

A.  ¦&#1 d; I#8217;t 17;t know.”<221;

The last reply obviously related to what the accused th or bed attime of questioning not a time of the use of the bus.

The import of all this seis seems tems to me o me to beto be sufficiently plain and unambiguous, and it is this, that Sibona told the accused that he would go and get his uncle’s permission for them to use the uncle’s bus (the vehicle the subject matter of the charge), that he came back with the vehicle, and that the accused got in and they drove off. There is no indication that the accused did not assume, when his friend arrived back with the vehicle, as he naturally would have unless told otherwise, that permission had been duly given, or that Sibona said or did anything from which the accused might have thought or suspected otherwise.

That was the prosecution case.

The defendant himself then gave evidence. He explained that he and Sibona wanted the vehicle to go and get some beer, and said that when he got home his mother told him that the owner of the vehicle had been looking for it.

“Then I knew that Sibona had stolen the bus”, he said.

He was asked in evidence in chief.

Q. Did Sibona say anything t you when you got into the bus?

A. ҈ No, I thought he hahe had permission.

Q. &##160;;&#16o drie b>s

On the foregoing I am of opinion that the defence was clearly raised that tcusedstly easonbeliehat Sibona had got got the pthe permission of Sibona’s uncle, the, the owne owner ofer of the vehicle, for Sibona and himself to use the vehicle and that there was no evidence of any cogency to the contrary.

There is no provision of law expressly or impliedly excluding the application of s.24 of the Criminal Code in this case and accordingly I hold as a matter of law that on a proper evaluation there was no evidence upon which the Magistrate could have been satisfied beyond a reasonable doubt that such defence was negatived.

In other words I hold that a reasonable magistrate properly applying his mind to the exigencies of proof in a criminal matter could not have convicted.

Accordingly I quash the conviction and set aside the order for imprisonment, and Order that K50 bail money be returned to appellant.

Solicitor for the Appellant: Ikenna Nwokolo & Co.

Counsel: Ikenna Nwokolo

Solicitor for the Respondent: Public Prosecutor K.B. Egan

Counsel: L. Gavara

N188.html#_ednref149" title="">[cxlix]^{(1935) A.C. 462 at p. 481.}

N188.html#_ednref150" title="">[cl]^{(1957) 1 Q.B. 547}

N188.html#_ednref151" title="">[cli]^{(1961) 1 WLR 1478}

N188.html#_ednref152" title="">[clii]^{[1970] UKPC 2; (1971) A.C. 814}