State v Diawo [1980] PGNC 25; N255 (6 August 1980)

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CRIMINAL LAW - trial - stealing as a servant - three counts - evidence leading to conclusion of guilt - failure of State to call relevant evidence, oral and documentary, or to explain failure.

CRIMINAL LAW - Defence calling accused and two witnesses - refusal of Defence counsel to open case - s.585 Criminal Code.

GREVILLE SMITH J: HeKagl Diawo was on the 15he 15th day of May, 1980 indicted before me upon three counts of stealing, as follows:

“First Count: HERMAN KAGL DIAWMINDI char charged that he on or about the 17th day of Febr February 1978 in Papua New Guinea being then employed in the Public Servi Papua New Guinea stole one hundred and thirty kina (K130.00) in cash which had come into hnto his possession by virtue of his employment.

Second Count: AND ALSO THAT the sEid H KMAN KAGL DIAWO of MINDIMA is charged that he on the 29th day of February 1978, in Papua New Guinea, being then employed in the Public Service of Papua New a stoo hunkina (K200.00) in cash which hadh had come come into into his possession by virtue of his employment.

Third Count: AND ALSO THAT the said HERMAN KAGL DIAWO of MINDIMA is charged that he on the 9th day of March 1978 in Papua New Guinea being then employed in the Publivice pua New Guinea stole one hundred kina (K100.00) in cash which had come into his phis possesossession by virtue of his employment.”

The trial proceeded on the 15th and 16th days of May, 1980 and on the fifth and sixth days of August and on the last of those days the accused was convicted as charged on each count.

When convicting I gave a short extempore judgment from notes and stated that I would give more detailed reason in writing later if required. Mr. Diawo’s solicitor has asked for such reasons, which I now give.

The first and chief witness for the State was one Mapio Mandape. At all relevant times Mapio Mandape was a Council Clerk with the Ialibu Local Government Council and the accused was a Council Advisor seconded from the National Public Service to the Council, and was Mandape’s senior officer. When Mandape commenced employment with the Council the accused was already there, as were two other Council clerks senior to Mandape. At the time when the offences were committed the two senior clerks had gone on leave, and Mandape was, apparently, left to cope as best he could with the work formerly done by the three. I mention this because it was one of the points with respect to which the Defence sought to make much. It was suggested that Mandape would have been so busy that he could not have noticed or recollected the things he said he had and did. On the departure of the two senior clerks Mandape became more or less directly responsible to the accused.

On the days in question he gave the accused the sums in question in cash. He did this in response, in each instance, to a request beforehand from the accused who stated that the money was required to pay, respectively, villagers who had done work on the Wongai Road, the Muli-Iate Road and the Tona-Kaupena Road. In the case of the first amount Mandape, upon receiving the accused’s request, wrote out a cash voucher No. 45199 (Cashbook Exhibit “A”) in the sum of K175.00, also a cheque in that sum, and took them to the accused who read the voucher and the cheque and then countersigned the cheque but did not countersign the voucher, though there is room provided by two dotted lines against the printed words: “Persons incurring expense” There was another signature on the voucher: “Undi His X Mark” above the printed words: “for Finance Committee” placed there by Mandape, as he was authorised or accustomed to do in such cases.

I interpose here that the accused answered the description of one of the “Persons incurring expense” because, in respect of K130.00 of the K175.00 either he alone, or he together with Mandape, arranged for the work to be done on the Wongai Road. Mandape said it was the accused and I accept his evidence on this, though there is some other evidence suggesting that Mandape also was present and perhaps took some part in the making of the arrangement at an initial stage.

Mandape’s explanation as to why he did not secure the accused’s signature on the voucher was that he was Mandape’s supervisor, and “I trusted him”.

I also mention that the voucher showed three items going to make up the K175.00, as follows:

Bridge worker @ K5.00 each for six men

0div>00

idth="67" vali valign="top">

175

“17/2/78		Ledger	Amount
	Being payment for Contracts and Materials.
Wongai Contracts on s on Road K10.00 per head for 10 men	100	00
	E55	30
	Purchasing of Bush Materials for Muli Cattle Block	E38	45	0000
Total	One Hundred and Seventy Five Kina - toea		00

Returning to Mandape’s evidence, Mandape said that he cashed thque on the same day, gave tave to the accused the K130.00 he had asked for for the Wongai contractors, and used the balance to make payment in respect of the third item on the voucher which was an expense he himself had incurred on behalf of the Council. He said that the K200.00 the subject matter of the second charge, and the K100.00 the subject matter of the third, together with an additional K10.00, were paid by him to the accused at the request of the accused by the same procedure as in the first payment, the accused in each case countersigning the cheque but not the voucher. Voucher No. 4520 in Exhibit “B” shows, as the first and major item of a number of payments dated 28/2/78, the following:

and Voucher No. 45223 (also in Exhibit “B”) shows as payments dated 9/3/78 the following:

<	Amount
	K	t
“Being payment to Road Contract at Kaupena	100	00
and Wongai	10	00”

Those later vouchers, as in the case of the first one, were signed by Mandape but not the accused.

Mandape continued his evidence as follows. A few days after the third payment he went to the accused and said:

The accused denied ever receiving that money. Mandape immediately reported the matter to the District Manager, one Raphael Tolinge, Mandape and accused both attended before the District Manager and the accused in the presence of the District Manager again denied receiving the K130.00. At the instance of Mandape a Council Driver, Yawi or Yali Rilibu, was called in and stated that the money for the Wongai people had been handed to the accused in his presence, that he had taken the accused down to Wongai Village to make payment, but as it was raining they did not go into the village but came back. Having heard this the accused said:

“Sorry, I thought you were talking about another payment. I remember getting the K130. I kept it in my house that night and next day went down to the village and made the payments.”

He said he did not go down in an official vehicle but on his own motor cycle. He said he had given the money to a man with a light skin whom he came upon standing beside the road, whom he did not know and whose name he did not get.

The District Manager said that the next day the accused and Mandape were to go down to Wongai Village and the accused was to pick out the man to whom he had given the money. They did go down as instructed, there was a gathering of villagers, but the accused said that the man to whom he had given the money was not there.

Thus alerted, he says, Mandape checked his books in respect of the voucher relating to the K200.00 payment to accused, made some enquiries, then asked the accused what he had done with the K200.00 Mandape had given him for the Muli-Iate people. Mandape said:

“I have been down to see the Muli-Iate people and you haven’t paid them yet.”

He said he had done this to pay for some “old” work. He said he had given the money to two men who were beside the road whose names he did not know.

Once more they went before the District Manager, once more a gathering of the villagers was arranged, this time at Tiri, and once more the accused failed to pick out the man to whom he had given the money, or the man with him.

Whilst before the District Manager in respect of this particular matter Mandape asked the accused which driver he had used when going down to make the payment. The accused replied that he had not used an official driver but had gone down in a vehicle driven by one Rex Umpao, a former clerk. He said that they had paid a visit together to Kagua and that on the way back they had called at Tiri Village and he had paid the money. At the time of this statement Rex Umpao was attending the Administrative College in Port Moresby and the District Manager ‘phoned him in the presence of the accused and Mandape, had a conversation with him and then told the accused that Umpao had stated, in effect, that what the accused had said was not true. The accused said nothing more. A short time later Umpao came back, and there was a meeting in the District Manager’s office between the accused, Umpao and Mandape, at which Umpao again denied the accused’s statement that he had driven him down to Tiri as the accused still said he had. Accused said:

“Can you remember the day we went down to Kagua and on the way back we went into the village and made the payment?”

I interpose here to say that in context I understood that to be a polite form of denial.

After the line-up at Tiri Village and before Rex Umpao returned Mandape made certain enquiries of the Kaupena-Tona people and then asked the accused which of that group he had given the money to. The accused denied “that he had ever got the money from me”.

“Can you remember the K10 you gave to one of the Wongai fellows. Out of the K110 I gave you you gave him K10 and you still had the K100 with you.”

“Does that mean you transferred both the K110 (sic) and the K200 to Tiri Road?”

“I don’t know about the other payment. I know I transferred this money to Tiri.”

“You don’t have the right to transfer the cash yourself. Before you do, the Council has to approve it and I have to do the bookwork.”

Again the two of them attended before the District Manager who became very angry about being thus troubled, and said he would call in the C.I.B., which he did.

The next witness called by the State was a Wongai villager named Yano Angua, a Village Councillor. He gave evidence as follows.

He remembered February and March 1978, “at that time” at the Ialibu District Office the accused and Mandape told him to “go and give the villagers some work to do”. Later on the accused came to Wongai to inspect the work (which I took to mean the work allocated) and took the names of the persons to be employed. He told them that they would be paid when all the work was done. He said some work was to be done strengthening bridges, and some was road work. The witness himself was supervisor of the road work, and one Pangawa “my brother” was supervisor of the bridge work. When the work was close to being finished Mandape came to him and said he had given the payment money to accused and asked if the workers had been paid. He told Mandape that they had not and the following day he and Mandape went and spoke to the District Manager. After his visit, the witness “got word from” the accused that he had given the money to a light skinned villager. There was no such “European” in Wongai Village nor did the witness know of one. Shortly after, the accused and Mandape came to the village. All the workers and anyone else who was interested assembled but the accused was unable to pick out the man he said he had given the money to. As well as being supervisor of the road work this witness was one of the workers also. He had never been paid anything for his work and had not heard and did not know of anyone else at Wongai having been paid. In the case of all earlier contracts before the one in question given to the Wongai people he had been the overall “boss”. All had been duly paid for. In each case payment due to him or her had been made to each individual worker in the witness’s presence but the accused had never been the one to make such earlier payments out. He said that only a matter of days after the line-up the Police came and asked him about the matter and he told the Police about the non-payment and they took a statement from him. That does not accord with other evidence.

Pangawa Mogea, the second supervisor also gave evidence for the State. He said he recalled events of February and March, 1978, and the accused coming to Wongai to get the names of the people who were to work on the contract. He remembered “Mapic” and a man named Palinga (presumably a Council driver) coming to Wongai to see if the workers on the road and the bridges had been paid by accused, and he recalled the gathering of the villagers at which the accused went around trying to recognise the man to whom he said he had given the money. He said the accused said that he had given it to a short, red (or lightskinned) man with a beard. He said that there was no such man at Wongai. He said he supervised the bridge repairs and the earlier witness Yano supervised the road work. He said he himself had never been paid, had not seen anyone else being paid, and had heard of no-one being paid.

The State also called a Police officer who had interviewed the accused about the alleged offences. The interview did not take place until September in the same year. The record of interview showed that the accused admitted getting contract money to be paid, in the sum of K130.00, on 17/2/78. He denied receiving the other two sums. He said that the K130.00 was to cover two contracts. He was not asked and did not say when the work on those contracts had been done, nor the name of the village or villages whose people were involved. He said:

“On this day I did not know how to drive so the Council driver of Ialibu Local Government Council drove the vehicle down and I paid this K30.00 to the other contract and on the 18/2/78 I went with Mr. Umpao and I paid this K100 to the other contract.”

He was an employee of the Ialibu Local Government Council from 1972 until 1977 by which time he had become the Council Executive Officer. At the end of 1977 he left to go to the Administrative College in Port Moresby where he was stationed also, at the time of giving evidence. At the end of February 1978 he had returned to Ialibu to pick up his family. When he returned to Ialibu he was there for two weeks. He said that whilst he was at the Administrative College and before he returned to pick up his family the District Manager ‘phoned him and asked whether he had “taken the accused to make a payment”. About two days after he had returned to Ialibu he was interviewed by the District Manager in the presence of the accused and Mandape and asked by the District Manager, concerning a sum of money that Mandape stated he had given to the accused for payment, whether he had driven the accused out to “Tiri and Wongai Road” to pay the contractors. Umpao replied that he had not done so in January or February, as at that time he had been in Port Moresby, but that in 1977 he himself went out, the accused with him, to pay some contractors on the Tiri Road. The sum involved was between K500.00 and K600.00 and he had cashed the cheque himself and paid out the money himself. The accused was merely with him. The people paid were from Tiri Village - some may have been from Mambi Village. He told the District Manager that he did not drive the accused on any occasion in 1978. The accused said that the witness did drop him at Tiri Road, and the witness said that that was not true.

During cross examination of this witness a man was called into Court by Defence counsel and the witness said that he knew him, and that he was Ralep Rata of Mambi Village. He said that Ralep Rata became a Village Councillor after 1977. It was put to the witness that he and the accused had paid K100.00 to Ralep Rata. My notes on the witness’s response to this are as follows:

“I never paid any money to that man. I paid one contract to Mambi but to a different man - only one man had the contract - K100 was paid. I am sure it was in 1977. It takes about 1 hour to drive from Wongai to Mambi. We paid him on the junction of the road between Tiri and Mambi - 2 or 3 people were with him. The man Ralep Rata was not there. In mid February I did not go with the accused and pay the K100. Beginning of January 1978 to end of February 1978 I was in Port Moresby - not Ialibu. It was two days after I came back that I was called to the D.M.’s office.”

It was put to the witness that there never was a meeting such as he related at which the accused was present, in the District Manager’s office. The witness replied that there was such a meeting and when asked if he was sure that the accused was there he said he was sure.

That was the case for the State, and the last witness for the State was Mr. Umpao. Counsel for the Defence had subjected Umpao to an aggressive and irascible cross examination in an attempt to get him to agree that in February 1978 he had driven the accused out to make a payment of K100.00, and that such a payment had been made in the witness’s presence to the man Ralep Rata. In this he failed, as he also failed to shake the witness’s evidence that he had been in Port Moresby not Ialibu in February 1978. Defence counsel was visibly perturbed by this failure, and some singular events then occurred which I will relate merely for later comment. When, upon the closure of the State case, I asked him to open the Defence evidence (he had earlier stated that the accused would give evidence) he stated that he did not intend to open his case, that he could not say what witness additional to the accused he would call “because it is all up in the air”, but that he would call the accused.

It was then 3.15 p.m., and I stated that the Court would adjourn to next morning to allow Defence counsel to put himself in a position to open his case. However upon the opening of Court on the following morning Defence counsel declined to open his case or state how many witnesses he would call, or their names, and stated that he was at liberty to take up that position because the terms of the third paragraph of s.585 of the Criminal Code were permissive not mandatory. I did not press the matter further.

Educationally he had reached Standard IV, then done a Public Service course at Waigani for a higher certificate and had received such a certificate. He was presently, and had continuously since 1974 been, an officer in the Decentralisation Section of the Department of Provincial Affairs. From 1st January, 1977, he had been on loan to the Ialibu Local Government Council as an administrative advisor. Amongst his duties as such were to check the Council projects and supervise the Council employees and the administration of the Council. Part of his function was to give out Council contracts, check progress on the contracts, and pay out contractors.

At the end of 1977 there was, he said, one unpaid contract given out by another officer, which was a bridge contract on the Wongai Road. At the end of 1977 the money due on this contract had not been paid because there had been no funds available. When an allocation arrived he told the clerk, Mandape, to raise a voucher and make out a cheque on 17th February 1978 in the sum of K130.00, K100.00 to be paid out on the Tiri-Mambi Road contract which had been arranged by the accused himself and K30.00 for the Wongai bridge workers. He told Mandape that the two sums were for Tiri and Wongai Roads respectively. Mandape raised the voucher and wrote the cheque for a larger amount, to include an expense Mandape himself had incurred on behalf of the Council. The accused signed the cheque, but he did not sign the voucher because “I had not asked for all of the money”. Mandape took the voucher and the cheque, and came back and handed him K130.00. On the same day, driven by a Council driver named Yali Rilibu he (the accused) went to the junction of the Wongai Road and the Ialibu-Kagua Road. They could go no further towar Wongai Village because rain was rendering the road temporarily untrafficable. As it happened there was a man standing on the road, his identity unknown to the accused (and, it would seem by inference, also the driver) and the accused asked that man to tell the contractors to come to the Council office to collect their money. This man then said that he had been the “boss-boi” and he would take the money to the village and divide it with the other contractors. The accused thereupon gave him K30.00. The next day, 18th February, Rex Umpao drove him to Mambi Village and he asked four men who were on the road to find the people who had worked on the K100.00 contract so that he could pay them. The four men said that they with another two had done the work, so he gave the K100.00 to them and told them to share it out. He knew the men’s faces but not their names. He did not obtain their names when making this payment. He had let out that contract himself. One of the four men was Ralep Rata aforementioned. When this journey was made Mr. Umpao had not yet gone, but was about to go, to the Administrative College. Later Mandape made a complaint that accused had stolen the money. The accused never got the names of the persons to whom he handed the money.

A line-up at Wongai Village was held. He was unable to identify the light skinned tall (sic) man to whom he had given the K30.00.

“There was a complaint. They tried to Court me. That was a week or so after I went down to the village.”

He refused to reimburse the money because he had not spent the money himself but had mispaid it. He told the District Manager he did not want to work for the Council any longer and did not do so. The next he knew of trouble was when he was interviewed by the C.I.B. in September that year. He neither asked for nor received the moneys the subject matter of the second and the third charges and knew nothing of the matters connected with them related in evidence by Mandape. When the matter of the K130.00 was being discussed in the District Manager’s office the driver Yali Rilibu was not called in because he was too busy, and there was no ‘phone call to Mr. Umpao in the accused’s presence. There was only one meeting in the District Manager’s office relating to missing money.

If the accused saw paperwork that was not correct he would fix it up. He was in error in not correcting the voucher which included the K130.00 and showed it as all going to the Wongai people. There was only one line-up - a Wongai line-up - no others. There was no meeting at the District Manager’s office at which Rex Umpao was present. Rex Umpao left for the Administrative College at the end of February 1978. Three or four days after the 17th February Umpao left for Port Moresby - he came back to Ialibu two months later or six months later. The accused received the moneys of the Wongai contract work. At the Wongai Village line-up all the villagers were not there. At the one interview with the District Manager that took place he told the District Manager concerning the K130.00 that he had paid K100.00 to the Tiri-Mambi Road workers and K30.00 to the Wongai Road workers. There was no meeting with the District Manager at which Rex Umpao was present, as related by the accused and confirmed by Umpao. There was only one, and Rex Umpao was not there.

The next witness was the man who had been called into the Court by Defence counsel by the name of Ralep Rata, and who had told the Court he was Ralep Rata, and had been identified by Umpao as such, but who now said his name was Ralabe Tukita. I attach no significance to this change of name. His evidence was as follows.

He was a village Councillor of Mambi Village, having become a Councillor on 11th June, 1978. He “got a contract” from the Ialibu Local Government Council in September 1977, payment on that contract was late and was made in the middle of February 1978 by Rex Umpao and the accused on the Tiri-Mambi Road at a place called Opa where the contract work had been done. There were four other men present. The accused handed the money over to one of the other men present, a man named Simba. This group had had only one contract in 1977. They had done the work within three months. The accused had given out the contract. Umpao and the accused visited the work before February just to check whether the work was finished. The payment was not made in 1977. It was in February 1978. In June 1968 he became a Councillor. (I interpose here that Umpao, who seemed to know this man well, had said that it was not until after 1977 that he became a Councillor.) When the accused was brought to the lock-up this year the Police came and got him. He could not remember the month the Police came and got him in 1980. He thought it was March. He knew the accused when he was at Ialibu. The first time he saw the accused lately was yesterday. The witness decided himself to come to Court. He knew the people of Wongai were charging accused and he knew the date of the Court so he came up. The accused told him before

“One of you was present when I paid and one of you must come up and give evidence.”

The third and final witness for the Defence was a man who said his name was Rata Powa and he gave evidence as follows.

He was a Mambi villager. He did some work on a road contract in 1977. He was paid at twelve o’clock on a Friday in February 1978 at Opa by Rex Umpao and the accused. He thought the villagers worked for three months, starting in 1978, and were paid as soon as they finished. He remembered that it was in February 1978. The accused handed over the money.

When asked in cross examination whether he was sure of the time of payment this witness smiled and said immediately:

There are a number of other matters that require mention, some of which were relied upon by the Defence, and they are as follows.

1. By way of narrative and in other ways a considerable amount of evidence was given, especially by Mandape, which would have been objectionable as hearsay had it nen adble ounds thanroof e facts scts statedtated. Def. Defence ence counscounsel stel stated that he would not object to this evidence provided it was not taken as proof of such facts, and I was careful to give it no weight by way of such proof.

2. ; D60encefcounsel stated eaed early in Mandape’s evidence that the accused admitted receiving the K130.00.

3. ;ټ&##160;chequlatinthto the three amounts forming the subject matt matter oter of thef the thre three chae charges were not tendered in evidence anevidence was adduced explaining the failure of the State to produce them. This was notwithswithstanding my intimation to Prosecuting Counsel early in the State case, and before the adjournment from 16th May to 5th August, that every effort should be made to produce the three cheques, and notwithstanding the continuation of the State case after that adjournment. The intimation was prompted by the absence of any reference in the State opening address to production of the cheques to the Court.

4. ;ټ T60; The fore former District Manager, Raphael Tolinge, was not called by the State nor was his name on the back e indnt.

5. ـ T6e State did not pnot propose to cato call Rell Rex Umpao and his name was not on the back of the indictment. He was called in consequence of an intimation by me to the State that I wished to hear evidence from him. Such intimation was given during Mandape’s evidence when the significance of matters to which Umpao might attest became more fully apparent. He was at the Administrative College at Port Moresby at the time. I received the impression that Prosecuting counsel did not fully appreciate that, although Defence counsel had said he would not object to evidence from Mandape as to what Umpao had said, or as to what the District Manager had said Umpao had said over the telephone, what was thus related was not evidence of the truth of the facts stated in what was thus related at second and third hand.

6. &##160;; T60 wite witness Mess Mandape mentioned in cross examination that he had given some assistance at the Police Station in interrogation at an interview betProseg couand the witness.

7. &#160 &#160 &#160 The State dt caol as a wita witness the driver Yali Rilibu mentioned by both Mandape and the accused in evidence.

I shall now take the witnesses one by one. Mapio Mandape impressed me as an iigentthful reliabeliable wile witnesstness, both by his demeanour in the witness box and by the evidence he gave. Defence counsel in his final address referred briefly to the possibility that Mandape may have stolen the second and third lots of money himself with the implicit suggestion that his accusations against the accused, and his hounding of him, to the extent that it may have occurred, were an elaborate hoax to exculpate himself concerning the money. I found this essentially an improbable concept, both upon my impression of Mandape in the witness box and also because I do not think a newcomer to the office, as Mandape then was, would be likely to have had the hardihood to carry out such a bold and elaborate plan, involving an open, deliberate and persistent attack upon the integrity of an established, senior and experienced officer. There is no suggestion that anyone else made any accusation. It was Mandape who initiated the alarm about missing money and made the accusations.

I do not think that Defence counsel had much confidence himself in that line. The whole gist of the long, aggressive and quick moving cross examination in English to which he subjected Mandape was, so far as it bore on Mandape’s reliability as a witness, contained in frequently reiterated phrases such as: “It was so long ago, can you be sure?” “Are you sure, now, you’re not mistaken?” “Aren’t you getting mixed up?” “How can you remember so long ago?”

It is fair, I think, to remark, in respect of such cross examination, that whilst no doubt quite common in Australia where English is the prevalent language, it is not in my view the sort best calculated to elicit the truth, or to impress a Court in this country. I did observe to Defence counsel that he might do better if he went more slowly and framed some of his questions more precisely, but upon his submission, in relation to his own mode, that “that’s what cross examination is all about”, I kept restraint to a minimum.

Right at the end of Mandape’s cross examination, under pressure of the sort of questions I have set out herein, Mandape was prompted to disclose that just after the main events related in his evidence he had, at the request of the Police, supplied them with a written statement of events. He also said, in reply to Defence counsel, that he had not seen that statement since.

Upon this, the Police were asked if they still had the statement and they discovered they had. The statement was obtained from the Police Station, and upon my intimation the Prosecutor made it available to Defence counsel to whom I said I would permit further cross examination if he wished. I also intimated to Prosecuting counsel that Mandape should be shown it, and that if there was any correction to be made to Mandape’s evidence at the instance of the State then, also, that should be done. Neither Defence counsel nor the State desired to ask the witness any questions on the statement, nor to put it in evidence.

Except for one matter, relating to a statement that he did not know whether the accused had “got” the money, which he satisfactorily explained as meaning that he did not know whether, in effect, the accused retained the money or not after receiving it, there was no cross examination of Mandape on his evidence at committal proceedings. From this it seemed fair to infer that Mandape’s evidence in this Court and his evidence in the committal Court and his early written statement to the Police were in harmony. No doubt the matters concerning which he gave evidence loomed as major events in his life, about which he knew he would have to give evidence, and upon the course of which he reflected from time to time. Overall, I had no doubt that all the evidence Mandape gave was substantially correct. Centrally, I was satisfied that Mandape did give each of the three sums of money to the accused at the accused’s request and for the purposes stated to him by the accused, in the way and with the background Mandape related, and that the accused did utter in respect thereof the false denials and evasions (as I was satisfied they were) that Mandape related in evidence. I was, ‘inter alia’, satisfied that the accused had stated to Mandape that the K130.00, the first of the three sums in question, was to pay for Wongai Road and bridge work and not, as to K30.00, for Wongai bridge work and, as to K100.00, for Tiri Road work. I felt fortified in my belief of Mandape’s evidence on this point by the entry in the relevant voucher. I think that if the accused had referred in his request to Tiri work as well as Wongai work the probability is that this would have been reflected in the voucher entry and the accused said that though it was his practice to correct errors, he did not correct this entry. In addition the witnesses Yano Angua and Pangawa Mogea, whose evidence I accepted, both said that the Wongai work was for both road and bridge work, and that they had been paid for neither.

It is convenient at this point to refer further to the two witnesses Yano Angua and Pangawa Mogea. To me they seemed honest witnesses and their integrity was not really challenged in cross examination. As to the reliability of their recollections if, as they said, they had fulfilled a contract for which they had never been paid, in my view they would retain a keener and more abiding recollection concerning that contract and its details than in the case of one for which they had been paid, especially if it were leavened by the spectacle of the accused, Mandape with him, visiting the village and scrutinising the assembled adult males in an attempt to identify a strange and unknown man who, standing by the side of the road, had been given money to which they were entitled. In the case of these two witnesses there was no dispute as to times and dates. The only points at issue were, firstly, whether the work was bridge work only, or road and bridge work, and they were insistent that there were two separate jobs given at the same time, road and bridge - on that they were adamant - and, secondly, whether any money had been paid to them on either, and on this they were equally adamant that none had.

Counsel for the Defence’s main approach was somewhat to deride generally the capacity for recollection and comprehension of these two witnesses as, for instance, by seizing upon the statements of one of them which seemed to say that about eighty people had worked on the contract, that the accused had not told them what they would get, but that the witness thought they would get K10.00 each because that is what they had got on previous occasions, and that he did not know what eighty times K10.00 amounted to. In my view such derision overlooks the matter of common knowledge that is it not unusual practice for a number of men to be selected for particular work, whose names are listed, and who are paid individually but who on their own arrangements are assisted by others, usually family or friends, to whom, when payment is made by the Council, reward is made by the listed man; also the fact that these witnesses were examined through an interpreter. These matters and suchlike were not probed fully and insistently as certain other matters were, and I considered them insufficient reason to reject the evidence of these two witnesses on the main points I have already referred to. As I have said earlier, in my view the evidence of these two men, in view of the Defence contention that only bridge work was contracted for at Wongai, tended to support the State contention that the whole of the K130.00 was asked for and given to the accused for Wongai Road and bridge work.

I now refer to the evidence of Rex Umpao. I was satisfied that he was an honest and reliable witness. No substantial attempt was made to impeach his veracity, only his recollection as to whether he was at the Administrative College in Port Moresby, or in Ialibu, in February 1978, as to whether it was in that month or at some other time that he drove out with the accused and made a payment of K100.00 to some villagers, and as to whether the man Ralep Rata, ‘alias’ Ralabe Tukita, was amongst those present when the payment was made. Umpao was a mature and educated man, with long experience as an employee of the Ialibu Local Government Council. His attention would have been focussed on the events of February 1978 by the ‘phone call to him at Port Moresby from the District Manager at that time, to which both this witness and Mandape swore, and the discussion later in this witness’s presence and the presence of the accused and Mandape in the District Manager’s office at Ialibu (which I was satisfied from his evidence and the evidence of Mandape did take place). After some short initial confusion due, I think, to the fact that he had just entered Court and the witness box and, in my impression, the State Prosecutor had started his questions by questions relating to a stage in events other than the one expected by the witness, Umpao was quite firm that he was not in Ialibu in February 1978 but in Port Moresby, and that though in 1977 there had been an occasion when he and the accused had gone out from Ialibu and K100.00 was paid, nothing like that occurred in 1978 and in particular in February 1978. I accepted the whole of this witness’s evidence as related herein.

At the end of the case I accepted the crucial evidence of the State witnesses and rejected the evidence of the accused and his witnesses where such evidence was in conflict therewith. I was not impressed with the accused in the witness box or his witnesses. As to the witnesses no events appeared to have occurred which would have caused these two villagers to recollect with precision the date of the K100.00 payment made by Umpao and the accused, assuming these villagers were present. Umpao was quite firm that Ralep Rata was not there at the time. He was not cross examined about the other man, nor was he given sight of the other man, and had departed by the time this witness was called. I was satisfied that the accused had transposed the K100.00 payment made in 1977 by Umpao to February 1978 in the process of concocting a defence. He had continued after February 1978 to live and work as a Government officer in the area and thus would have had ample opportunity to suggest to or persuade his two witnesses, had he been so minded, that the K100.00 payment which Umpao agreed was made was made in February 1978.

There was, in my view, no reason seriously tenable on the evidence why Mandape should give false evidence and, as with every accused, there was on the part of this accused the possible motive of escaping conviction. I thought it very unlikely that a person of the accused’s intelligence and experience would have given money to an unknown person he came across standing beside the road in the circumstances he related.

As already stated, at the end I was satisfied that the accused had received each of the three sums of money as alleged. As to the second and third sums I infer that he stole them from the fact that he denied and denies receiving them, and his evasion with Mandape as recorded earlier herein. As to the first sum I infer that he stole this sum on Mandape’s evidence that it was, expressly, for the Wongai people, on the evidence of the two villagers that no money was received by them or to their knowledge, by the accused’s initial denial to Mandape that he had ever received that sum, and his subsequent lying (as I regard it) about K100.00 of it being paid on an excursion in February 1978 with Umpao, and the other evidence and circumstances generally.

I was concerned, and gave due attention to the non-production of the cheques by the State, and its failure to explain this non-production, and the use of Mandape at one stage to assist with interpretation between State counsel and one of the two villager State witnesses.

In connection with these two matters Defence counsel simply drew the Court’s attention to them in his address. He did not pursue this or attempt to erect anything on, or suggest anything in respect of, these events. As to the last mentioned, I thought it right in all the circumstances to regard this as an unwitting error by counsel with less than a year’s experience, with no sinister connotation, one which was unlikely to have prejudiced the accused and one not productive of any prejudice against him.

As to the failure of the State to produce the cheques or explain their absence, this was indeed a weakness in the State case. One might have wondered whether indeed, notwithstanding the second and third vouchers, there had ever been a second and a third cheque, in view of the Defence case that the accused knew nothing of a second or third cheque and had never received a second or third sum of money as alleged, and that there had been only one attendance at the District Manager’s office, presumably about the first sum of money. And there was also the fact that the State did not call the District Manager to give evidence, inter alia, that there was trouble about three sums of money alleged missing.

However, as already mentioned, it was before the long intermediate adjournment that I mentioned to the State Prosecutor, during the case, the desirability of producing the cheques, and also before that adjournment I asked him whether he would be calling the District Manager. He seemed uncertain as to the latter and I asked him where the District Manager was stationed and he replied at Mount Hagen. Counsel for the Defence intervened to say: “We might call him ourselves”. He did not do so, neither did the State. The Public Solicitor of course has an office at Mount Hagen and Defence counsel passed through Mount Hagen when travelling to and from Mendi.

There was friendly communication between counsel throughout the case, and I have no doubt that Defence counsel knew quite early whether or not the cheques were going to be produced by the State or an explanation given for their non-production, and whether the State proposed to call the former District Manager. I am not sure of this, but I got the impression, in fact, that Prosecuting counsel on occasion was taking advice from Defence counsel. This would have been a most undesirable state of affairs. Be that as it may, I was satisfied that Defence counsel was not taken by surprise by any of these events and had ample time to make his own enquiries and arrangements accordingly, which might have included subpoenaing production of the cheques himself, or other relevant or associated records, or other witnesses. He had the very considerable resources of the Public Solicitor’s office at his disposal and was the senior of the two counsel, and unremittingly assiduous in this case in the interests of his client. He stated in Court at one point during the case, in relation specifically to what aspect I do not now recollect, that he had searched the records of the Ialibu Local Government Council office himself, and remarked to the effect that the records were chaotic. That, as everyone knows, is a deplorably prevalent state of affairs throughout this country at this time, and a reason why the absence of records and other documents in a particular instance do not so readily give rise to the sorts of inferences that they might give rise to otherwise. Also, I do not think it unlikely that it did not occur to State counsel to call evidence concerning non-production of the cheques.

Of course it is true, as Defence counsel said, in his succinct way, that “the defence doesn’t have to prove a thing”, and one never loses sight of this, but in all the circumstances of this case I was satisfied beyond reasonable doubt that the failure of the State to produce the cheques or explain such failure, or to call the former District Manager, or the driver Yali Rilibu, did not render it unsafe to convict, and I was satisfied beyond reasonable doubt of the guilt of the accused as charged on each count.

I now turn to the matter of the refusal of Defence counsel to open his case, with no explanation other than the statement that he was not obliged in law to do so. Consideration of this matter played no part in my determination as to whether the accused should be convicted or acquitted, but it seems to me to warrant some general observations for the future guidance of counsel. The relevant section of the Criminal Code, s.585, provides as follows:

“585 SPEECHES BY CLUNSE> Before any evidence is given at the trial of an accused person the State Prosecutor is entitled to address the court for the purpose of opening tidencendede adduced for the prosecution.

If thef the accu accused person or any of the accused persons, if more than one, is defended by counsel, and if such counsel or any of such counsel says that he does not intend to adduce evidence, the State Prosecutor is entitled to address the court a second time for the purpose of summing up the evidence already given against the accused person or persons for whom evidence is not intended to be adduced.

Subject to Section 584, at the close of the evidence for the prosecution the accused person, and each of the accused persons, if more than one, may by himself or his counsel address the court for the purpose of opening the evidence, if any, intended to be adduced for the defence, and after the whole of the evidence is given may again address the court upon the whole case.

If evidence is adduced for an accused person, the State Prosecutor is entitled to reply.

If evidence is adduced for one or more of several accused persons, but not for all of them, the State Prosecutor is entitled to reply with respect to the person or persons by whom evidence is so adduced, but not with respect to the other or others of them.

When an accused person, being defended by counsel, is allowed by the court to make a statement to the court, the Prosecutor is entitled to the same right of reply as if evidence had been adduced for that accused person.”

It will be noted that the section is couched in terms of entitlement so far as concerns all parties referred to. It imposes no obligation. However that is not always, in my view, the end of the matter as Defence counsel seemed to think. It is often necessary, especially in longer and more complex cases, for counsel to open his case in the interests of the orderly conduct of the trial. The Defence enjoys an advantage because he has knowledge from the depositions of the general outline of the State case and the State is obliged to furnish the Defence in advance with transcripts of evidence of any additional witnesses it proposes to call. The judge, who does not read the depositions, is dependent on the State opening for a proper appreciation of the significance of each item of the State evidence as it unfolds, and its place in the total case the State attempts to present. Such an appreciation is of importance to even such a mundane matter as the taking of notes - what to write down and what not. This applies also to the Defence case.

When it comes to the Defence, the State and the Court usually have been apprised of the gist of the Defence by the cross examination However, if this does not occur or does not occur adequately, and Defence counsel does not open his case, difficulties are prone to arise. If he does not know, when cross examining one witness, who the next witness is to be, or what he will be called to say, or even if there is to be a next witness, Prosecuting counsel cannot cross examine the current witness concerning matters in respect of which that next witness will be called, or the next. Defence witnesses will have to be kept in the precincts of the Court and not allowed to depart as they often, for their own convenience, are permitted to do now, in case they are required for further cross examination in the light of what a later defence witness may say. And State witnesses may have to be kept readily available until the very end of the Defence case in case they are required for rebuttal. It may be easy to exaggerate the additional difficulties that may arise, both for the Court and others, from failure of Defence counsel to open his case, but from time to time they will undoubtedly be substantial. And one may be sure that in an appropriate case the trial judge will ask himself why Defence counsel has not opened his case, more especially if counsel declines to do so in the face of a request by the trial judge without stating any reason, and in the absence of any apparent good reason. There is authority of course that in certain circumstances the conduct of counsel may be relevant in evaluating evidence (The State v. Ogadi Minjipa N255.html#_edn278" title="">[cclxxviii]¹, R. v. Robinson N255.html#_edn279" title="">[cclxxix]²), and if counsel appears not prepared to be helpful to, and above board with, the Court that may well, depending on all the circumstances, not assist the credibility of the Defence case which ultimately emerges. In a particular case it may be open to the Court to infer that counsel’s intention is to preserve ‘carte blanche’ to his client and his witnesses to depart from instructions.

I would deprecate any practice arising of Defence counsel declining to open the defence. Such a practice would not promote the interests of justice or trust between the courts and counsel, or between counsel.

The accused was sentenced to nine months’ imprisonment with hard labour on the first charge, six on the second charge and no penalty was imposed in respect of the third. He was so sentenced because I considered an overall sentence of fifteen months to be appropriate. There were ten clear days between the first and the second offence and eight between the second and the third. The total amount was K430.00, none was recovered and there was no offer of restitution. The accused was a mature educated person in a substantial position of trust. It was not suggested he was driven by need. The offence is very prevalent and, especially in outstations, because of staff inefficiency, often a reluctance on the part of one person to give evidence against another whom he personally knows, shortage of trained and experienced Police and other investigators and frequent disarray of relevant records, difficult to prove. A substantial individual and general deterrent sentence was required.

The accused had no prior record and had spent three weeks in custody. I took note of the matters mentioned in the antecedent report.

National Court of Papua New Guinea

State v Diawo [1980] PGNC 25; N255 (6 August 1980)