State v Vargi [1991] PGNC 81; [1991] PNGLR 54; N942 (30 January 1991)

N942

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

VARGI

Rabaul
Ellis J

29-30 January 1991

CRIMINAL LAW - Practice and procedure - Notice of alibi - No alibi evidence led - Status of notice of alibi - Criminal Practice Rules 1987, O 4, Div 2.

CRIMINAL LAW - Evidence - Role of trial judge - When lack of evidence on particular topic - Notice of alibi given - No alibi evidence led - Judge should not ask questions - Criminal law - Evidence - Witnesses - False statements - Whether corroborative - Not to be substituted for affirmative evidence.

Following charges of armed robbery and unlawful use of a motor car, a notice of alibi was provided to the State Prosecutor pursuant to the Criminal Practice Rules 1987, O 4, Div 2. No alibi evidence was led on the trial, during which the accused made, in evidence, two obviously false statements.

Held

(1) Because a notice of alibi is a document passing between the accused’s lawyer and the prosecutor and does not become evidence unless tendered, failure to lead evidence in accordance with such a notice of alibi does not entitle a trial judge to ask questions thereon. In the absence of evidence in chief or cross-examination on a topic, a judge should not actively seek evidence thereon.
Yuill v Yuill [1945] P 15 at 20 and R v Butler (1953) 53 SR (NSW) 328 at 331, considered.

(2) Whilst false statements by an accused in or out of court may amount to corroboration they cannot take the place of lack of affirmative and material evidence.
R v Buck (1982) 8 A Crim R 208 and R v Sutton (1986) 5 NSWLR 697, considered.

Cases Cited

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619.
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234.
R v Buck (1982) 8 A Crim R 208.
R v Butler (1953) 53 SR (NSW) 328.
R v Sutton (1986) 5 NSWLR 697.
R v Van Beelen (1973) 4 SASR 353.
Schliebs v Singh [1981] PNGLR 364.
State, The v Joseph Maino [1977] PNGLR 216.
State, The v Silih Sawi [1983] PNGLR 234.
Yuill v Yuill [1945] P 15.

Trial

This was the trial of an accused charged with armed robbery and unlawful use of a motor vehicle.

Counsel

S Madana, for the State.
T Tamusio, for the accused.
Cur adv vult

30 January 1991

ELLIS J: This accused is charged with armed robbery and an associated charge of unlawful use of a motor vehicle. To these charges he has pleaded not guilty. At the outset of the trial a number of statements were tendered by consent.

Isidor Vakaian’s statement (exhibit A) recounted the events of an armed robbery which occurred at about 2-2.30 pm on 13 October 1989 when masked men carrying guns and knives broke into a plantation office taking money and smashing various items in the office. However, she does not identify this accused.

Exhibit B is the statement of Brown Konos whose recollections are similar. He counted six men and indicated that a plantation vehicle was taken and used as a getaway car.

Thirdly, Augustine Pekare made a statement which became exhibit C. His recollections are consistent with those already indicated: he observed two men remaining outside while four men came inside. Of the four who came inside, one cut him in the stomach region with a knife. They then kicked the office occupants, damaged property and took K5,619.60 in cash together with a nearby plantation vehicle valued at K12,520.

Henry Kahoraso assessed the time of the robbery as 3 pm. However, as all the other witnesses suggest that it occurred between 2 and 2.30, I think that his assessment of the time of the robbery is faulty. He was preparing pay packets at the time of the robbery when a man pointed a rifle at him then went around smashing the office louvres. He provided some descriptions of clothing worn by the robbers and he recognised one of them as Joseph Anco.

From exhibit E, the statement of Kepas Katon, it appears that he observed the robbery from outside the plantation office. His description of the vents is similar to that contained in the earlier statements.

Hellen Brown saw the initial stages of the robbery, hid inside her house and continued to watch the vents from there.

John Sakua took some explanatory photos. His statement and those photos became exhibits H1 and H2 respectively.

Lote Neva’s statement (exhibit J) recalled this accused calling at her house at about 4 pm on Thursday, 12 October 1989, together with Steven Takapme. Lote Neva recalled that when he was asked for his father’s shotgun he was told that it was wanted for the purpose of shooting birds. At about 6 pm on the following Sunday (15 October 1989) he went to Ralubang village to get the shotgun but the accused was not there. A similar visit on Monday, 16 October was unsuccessful. On the third occasion, on Sunday, 22 October, he obtained the shotgun from Bernard Vargi and returned home with it.

Francisca Tiun Tomika’s recollections were tendered in a document which became exhibit K. He recalled being at Ralubang village at about 3 pm on the date of the robbery in question. While collecting some greens at the back of a copra dryer he saw this accused wearing "black sport wear" with an orange coloured T-shirt around his head. This witness then reported these matters to three people. This "headgear" is broadly consistent with that described by a robbery eyewitness, Hellen Brown.

A number of allegations were made by the accused suggesting that threats and assaults in relation to the conduct of police officers involved in his record of interview. It was not necessary to decide those allegations since the investigator, Andrew Manamb, an officer with 12 years experience in the police force including two years with CID, did not comply with the requirements of s 42(2) of the Constitution in that he told the accused of his constitutional rights and then gave him no opportunity to exercise them. Section 42(2), relevantly for present purposes, provides:

"(2) A person who is arrested or detained:

...

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid);..."

Police officers may ignore or overlook such constitutional requirements in relation to the arrest and detention of people such as this accused but the National Court has clearly and consistently demonstrated on many occasions that it will not take that approach: see The State v Joseph Maino [1977] PNGLR 216; Schliebs v Singh [1981] PNGLR 364 and The State v Silih Sawi [1983] PNGLR 234. In the exercise of my discretion I reject the tender of the record of interview.

Just prior to the close of the State’s case, a police officer was called and asked to indicate the distance from the site of the robbery to where Francisca Tiun Tomika saw the accused. He assessed that it would be some 20 to 30 minutes drive away from the site of the robbery.

That being the State case, it was surprising that the accused was called to give evidence. He alleged that he went to borrow the gun in question along with Steven Takapme. This is consistent with the evidence of Lote Neva who alleged that he was told that "they wanted to shoot birds". The accused confirmed this latter aspect in his evidence.

When first questioned as to his movements on the day of the robbery the accused indicated that he could not remember because the date was so long ago. The accused did not give any other evidence of where he was or what he did on the day of the robbery. Perhaps his lawyer thought that the State had not proved his presence at the site of the robbery during the time of the robbery and since the other evidence was only circumstantial then it is perhaps understandable that no evidence was led from the accused on that topic. Or perhaps the accused’s lawyer avoided the area because the accused indicated that he could not remember what he was doing on the day of the robbery.

The defence case was full of surprises. First, despite a weak circumstantial State case, the accused was called to give evidence. Secondly, when asked as to his whereabouts on the date of the robbery he replied that he could not remember and he was thereafter asked no other questions as to his whereabouts. Thirdly, no use was made in cross-examination of the notice of alibi which set out details of what the accused alleged he was doing on the date of the robbery and which named three people whom he alleged were with him at that time on that day. It is therefore surprising that he was not cross-examined either as to his alleged whereabouts on the day in question or as to whether his alibi corroborators would be called as witnesses and, if not, why not. Also, no attempt was made to tender the notice of alibi in reply.

The notice of alibi, dated 7 August 1990, was amongst the documents provided to the Court during the earlier part of the trial. In it the accused alleged, some 10 months after the robbery and some five months before the trial that he was, at the time of the robbery, with three other named persons at another location. That document was signed by a lawyer from the Public Solicitor’s Office. It was obviously prepared on the basis of instructions received from the accused.

A notice of alibi derives from the Criminal Practice Rules 1987, O 4, Div 2. It is a document whereby the accused’s lawyer is required to provide advance notice to the State of a proposed alibi defence. As no attempt was made to tender this document, it did not become evidence. At best, in this trial it attained a status somewhat similar to that of pleadings in a civil case. I think it preferable to regard it as a document normally passing between the participating lawyers which might not ever be presented to the judge (the rules require production to "the Prosecutor").

To make use of that document myself would clearly be improper: it never became part of the evidence and it could hardly be used against the accused without him being first given an opportunity to answer questions about it: see s 23 of the Evidence Act (Ch No 48). A trial judge should rarely, if ever, ask questions himself or herself on a topic which has not been the subject of either evidence in chief or cross-examination. This principle was perhaps best put by Lord Green MR in Yuill v Yuill [1945] P 15 at 20:

"A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judges examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue."

I would quote with approval the words of Street CJ in R v Butler (1953) 53 SR (NSW) 328 at 331:

"[F]or a judge to take part, as if he were counsel, in an elaborate examination or cross-examination of a witness is unfair to the witness himself, is unfair to counsel, and may destroy a line of examination-in-chief or cross-examination which counsel had carefully decided upon beforehand. It must be remembered that counsel examining in-chief obviously has thought how that examination is to be conducted in the light of the information before him in his brief, and it will be impossible for him to maintain the thread of his examination if he were subjected to constant interruptions or if the examination were taken out of his hands. So also in regard to cross-examination."

That warning is most appropriate where the accused’s lawyer, in evidence-in-chief, has not raised the topic and even more so where that topic was not pursued by the cross-examiner.

A close consideration of the evidence of the accused reveals two answers which are perhaps best described as "silly lies". The first was that when asked "At the Police Station did they asked you about the robbery?" he answered no. The second was when he made a claim, not uncommonly made by accused persons, that the first time he had heard about the robbery was in the course of this trial.

Those two answers cannot be believed. However, refusal to believe a witness in respect of some matter does not of itself take the place of lack of affirmative evidence. It is clear that false statements may be corroboration and there are a number of reported decisions in which consideration has been given to an appropriate jury direction when such as issue has arisen in criminal cases. Perhaps the most useful passage is to be found in the report of R v Buck (1982) 8 A Crim R 208 at 214, per Burt CJ:

"A jury, in my opinion, requires a very careful direction upon the circumstances in which a lie told by an accused person in or out of court can amount to corroboration. It has been said that to be capable of amounting to corroboration the lie must be deliberate, it must relate to a material issue, the motive for the lie must be realisation of guilt and the fear of truth and the lie must be established as such by evidence independent of the witness to be corroborated or by admission made by the accused."

This passage was applied in R v Sutton (1986) 5 NSWLR 697 by the New South Wales Court of Criminal Appeal.

In the present case, the two answers of the accused to which I have referred, are, in my view, insufficient to elevate the weak circumstantial State case all the way up to the level of proof beyond reasonable doubt. The State case was circumstantial, comprising but two aspects: first, the accused borrowed a gun before the date of the robbery and returned it after the date of the robbery; secondly, he was wearing head gear broadly consistent with that worn by one of the participants in the robbery at a time consistent with him having travelled from the site of the robbery to that location by motor vehicle.

The High Court in Australia recorded, as far back as 1911 in Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, that where the evidence against an accused person is circumstantial the usual practice was to direct the jury that it was their duty to acquit the accused if there was any reasonable hypothesis consistent with innocence. That principle has subsequently been applied in Australia on many occasions, perhaps the most famous of which are Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234; R v Van Beelen (1973) 4 SASR 353 and Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521. In reality the principle is little more than the application of the fundamental requirement that the State must prove the guilt of the accused beyond reasonable doubt to the particular situation where the State case is founded upon circumstantial evidence.

In the present case I have little difficulty in thinking of a reasonable hypothesis consistent with the innocence of the accused. The evidence against the accused in the present falls far short of proof beyond reasonable doubt and the accused is therefore entitled to an acquittal on both charges.

Accused acquitted and discharged

__________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.