State v Kindagle [1990] PGNC 19; N846 (22 March 1990)

Unreported National Court Decisions

N846

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR: 477/89)
THE STATE
V
CAMILUS SIWI KINDAGL, PAUL PALME KINDAGL & TAKAI KIAK(1)

Kundiawa

Brown J
20-22 March 1990

EVIDENCE - Similar facts - not admissible “where effect only to show that a person is of general bad character” - Probative value so slight that its prejudicial effect on the question of identity would require a judge in the exercise of his discretion not to admit it.

EVIDENCE - burden of proof - prosecution case includes allegation of accused’s previously expressed malice towards victim - accused’s denial in record of interview - similiar facts evidence allowed to validate victims expressed reasons for foreknowledge of such malice - circumstantial evidence of identification as a consequence of such validation.

Held:

(1) &#160denci of a conversatiosation had by the accused prior in time to the alleged offence allowed on the basis of “similiar facts”.

(2) evch ncededmisaible to rebo rebut accused’s denials in his record of interview of malice intent towards the victim.

(3) ҈ tiobavale value of e of such eviden rel to vs testimony and hand hence ence indirindirectly on the question of identification, sufficient to justify reception.

(4) ـ&#1ircumes of c oferonveronversatiosation showing bad character do not of themselves prevent acceptance of such evidence where such conversatf rat probative value.

Counsel:

Mr J B Kesan, for the State.

Mr

Mr K Wogaro, for the Accuseds.

RULING ON ADMISSIBILITY OF EVIDENCE IN COURSE OF TRIAL

BROWN J: At the conclusion of thte tate case, the State Prosecutor sought to call evidence through an inmate of Baisu Corrective Institute. Such evidence would e the terms of a conversation prior in time to this offence of attempted murder whereby oney one of the accused, Paul Palme disclosed a grievance against the Catholic Mission in general and the Brothers (as well as others) in particular. One of the Brothers, Bro Theo was injured in a subsequent attack involving three persons, one of whom was alleged to be the accused, Paul Palme. Identification was in issue.

I am asked to allow evidence by a witness from Baisu Corrective Institute, Mr. Kesan intimates, with whom the accused, Paul Palme had had a conversation. During this conversation the accused is alleged to have said words to the effect that he seek compensation from the mission and if not (sic) there will be trouble for the mission especially the Fathers and Brothers.

Mr. Kesan put the evidence on the basis that it goes to establish motive while Mr Wogaro for, the accused seems to be opposing its acceptance urging that I exclude it in the exercise of my discretion. I give written reasons for I consider although I am not equipped on circuit with many references that, this trial should proceed without undue delay.

Bro Theo recounted a history of ill will by Paul Palma, this accused towards the mission including a previous assault on a Sister. He was sentenced to some six months in jail. This history was also given without objection. He also recounted a threat by Paul Palme on the day in question, when he was alleged to have said “if we (presumably the mission) wouldn’t pay him compensation for the time he was put in jail, if not paid, he would bring harm to the station, the brothers and fathers.”

But now counsel for the State seeks to lead evidence of a conversation prior in time, had by the accused with an inmate of the corrective institute. I presume, since this evidence tended to show the accused had served 6 months for threatening or assaulting a female missionary worker, that this fresh evidence relates to the time of the accuse’s incarceration for that offence and that “compensation money” will relate to that period. I would say at once I do not believe the evidence sought to be led goes to character; nor should it be included on that ground. I have before me evidence that this accused was in jail but nevertheless this further evidence is not put as I understand it, to show bad character, which is incidental. It would seem to be put on the basis of similiar facts evidence and I refer to a paper of the Hon Justice Eggleton entitled “The relationship between relevance and admissibility in the law of evidence in “Seminars on Evidence”, ed. Harold H Glass; Sydney Law Book Co Ltd at p 67.

“It is submitted that the principles which ought to be observed in determining the admissibility of “similar facts” can be expressed as follows:-

1. ټ E60; Evidence of similar acts is not admissible where its only effect is to show that a person is of general bad character (or general goaractnd thre lito have behaved in the way alay alleged.

2. ;&160;&#160 But But if the evidenceraas rational probative value otherwise than as showing general bad (or good) character, it is admissible, and the fact that it shows that trty cned ibad (or good) cha) characteracter does not make it inadmissible.

3. &#T60; pee oiveatord wn ruln rule 1 is the word “general”. To prove merely that an accused person has previously been guilty of larceny by a trick is dmisson a quentge ofeny by a trick, but, but wher where frae frauduleudulent innt intent is denied, proof of previous offences of an exactly similar character may be admitted to show that the accused could not have made an honest mistake. Thus, evidence of similar facts which shows no more than a propensity to commit a particular type of offence may be admissible where it is relevant, not because of its tendency to show bad character generally, but because it establishes some specific fact.

4. &#I60; im crl cnases uhe Juhe Judge has a discretion to exclude evidence which should be admissible in accordance with the precediragraif inview rejudo the accused, measured against the probative valuevalue of t of the evhe evidencidence, woe, would make it unfair to admit it.”

The State wishes to put the evidence on the basis that this man of all others had expressed a willingness to do injury or damage to the mission or its persons and thus, he had a motive for being there on the night in question. On that basis it has probative value and using the phraseology above the fact that, it also shows that the party concerned is of a bad character does not make it inadmissible.

In his record of interview, Paul Palme expressly denied any ill-will towards the mission or its personnel. I consider such evidence is admissible to refute that denial, and I may in due course place such weight on this fresh evidence as I see fit. It goes further and affords some probative weight in relation to Bro Theo’s history of this accused.

If I have regard to the reasons given by Bro Theo for finding a 99% probability that he was wrestling with this accused he includes (as well as stature, build and appearance) a history of trouble given the mission by this accused. Consequently the evidence may be treated as surrounding detail to substantiate the reasoning of Bro Theo as to his identification on the night. I would allow the evidence. Further, were I to exclude it, I may prejudice the accused for his case may in some way require acceptance of the facts asserted in his two conversations or putting it another way, may afford him some evidence of his real concerns and he may argue that its probative value on the question of identity is so slight that, I should disregard it for that purpose.

For these reasons, I then allow the evidence to be given.

Lawyer for the State: Public Prosecutor

Lawyer for the Accuseds: Public Solicitor