State v Wapidik (No 1) [2009] PGNC 136; N3776 (15 July 2009)

N3776

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 489 OF 2007

THE STATE

V

MICHAEL WAPIDIK & WESLEY MICHAEL

(No 1)

Kokopo: Makail J,
2009: 09th, 10th & 15th July

CRIMINAL LAW - Practice & Procedure - Objection to evidence of alibi - Notice of alibi given - Breach of rule in Browne -v- Dunn (1893) 6 R 67 HL - Failure by defence counsel to cross examine State witnesses on defence of alibi - Effect of - Unfair to State’s case to lead evidence of alibi - Objection upheld - Evidence of alibi disallowed - Criminal Practice Rules 1987 - Order 4, rules 4, 5 & 8.

Cases cited:
Papua New Guinea cases

The State -v- Bernard Vargi [1991] PNGLR 54
The State -v- Robert Wer & Ors [1988-89] PNGLR 444; N776
The State -v- Sei Nakiking Tubol & 9 Ors [1994] PNGLR 378; N1206
The State -v-Tony Pandau Hahuahori (No1) (2002) N2185
The State -v- Raphael Kewangu (2002) N2189
John Jaminan -v- The State (No 2) [1983] PNGLR 318
Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC927

Overseas cases

Browne -v- Dunn (1893) 6 R 67 HL

Counsel:

Ms Libai, for the State
Messrs T Potoura & G Kerker, for the Accused

RULING ON OBJECTION TO CALL EVIDENCE OF ALIBI

15th July, 2009

1. MAKAIL J: These two persons were accused of committing aggravated robbery of a trade store when they held up one Donald Isidor with bush knives and gun and robbed him off his trade store goods including 14 bottles of intoxicating liquor, namely Negrita in the early hours of the morning of 06th January 2007 valued at K700.00 at Naparpar No 4 village in the Gazelle District of the East New Britain Province contrary to section 386(1) & (2) (a), (b) & (c) of the Criminal Code.

2. Each denied the charge and a trial was conducted. They raised as one of their defence the defence of alibi. They, through their lawyers did serve on the State, notices of alibi filed on 24th April 2009 and 18th May 2009 respectively in accordance with the procedural requirement of Order 4, rules 4 and 5 of the Criminal Practice Rules 1987. They allege that they were somewhere else, sleeping, at the time the alleged armed robbery took place.

3. The notice of alibi for accused Michael Wapidik filed on 24th April 2009 states in relevant parts that:

"1. That at the relevant time and date of the alleged offence, the accused Michael Wapidik was at Chan Alois residence and asleep.

2. That the accused will call the following person to be his witnesses:

(a) Jenny Alois

In her evidence, this witness will say that during the evening, she was with the accused and other and they were baking bread. She was still baking bread with her mother, father and another brother when the accused went to bed.

(b) Rodney Alois

This witness will also confirm with the above witness that the accused was with them during the night in question and will further confirm that the accused slept with them that night.

(c) Chan Alois

This witness is the father of the above two (2) witnesses and will give similar evidence to the above witnesses.

(d) Rodney Alois

This witness will also confirm with the above witness that the accused was with them during the night in question and will further confirm that the accused slept with them that night.

(d) Nait Alois

This witness will is the mother (sic) the above two (2) witnesses and the wife of the witness (c) and will also give similar evidence to the above witnesses."

4. The notice of alibi for accused Wesley Michael filed on 18th May 2009 states in relevant parts that:

"1. That at the relevant time and date of the alleged offence, the accused Wesley Michael was at his house and residence sleeping.

2. That the accused will call the following persons to be his witnesses:

(a) Theresia Kapia

She is the accused’s mother and will say that during the evening, the accused Wesley Michael was with them and had dinner and saw the accused go to bed.

(b) May Karduk

She will also confirm the above witness that the accused was with them at the relevant time in question and will confirm the above witness’s evidence."

5. According to Oxford Advance Learner’s Dictionary, Oxford University Press (6th ed 2000) at p 29, an alibi is defined as "evidence that proves that a person was in another place at the time of a crime and so could not have committed it." And according to Order 4, rule 8 of the Criminal Practice Rules 1987, "evidence of alibi" is defined as; "evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission."

6. Order 4, rule 4 states:

"4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice -

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address."

7. And Order 4, rule 5 states:

"5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office."

8. Since the defence has duly complied with this procedural requirement, I consider that the State is fully aware of the two accused’s defence of alibi. The State called two witnesses who gave oral evidence in support of the charge against the two accused. They are the owners of the trade store by the names of Mr and Mrs Donald and Mary Isidor. But during cross examination of each of them, Mr Kerker of counsel for the defence did not put to them the defence of alibi. That is, he did not suggest to them that they must have seen someone else at the scene of the alleged crime as the two accused were somewhere else in the early hours of the morning of 06th January 2007.

9. After the State closed its case, the defence opened its case and called one of the accused, Michael Wapidik to give evidence. Mr Kerker attempted to lead evidence in respect of the defence of alibi when Ms Libai of counsel for the State objected on the basis that if the accused were allowed to give evidence of alibi, it would offend the rule in Browne -v- Dunn (1893) 6 R 67 HL. Ms Libai was unable to refer me to any case authorities on point to support her objection on the basis that, since the defence did not put their defence of alibi to the State witnesses during cross examination, even though they had given notice of alibi to the State, it is unfair for them to lead evidence on alibi in the defence case. But she refers to The State -v- Bernard Vargi [1991] PNGLR 54.

10. On the other hand, Mr Kerker submits that since the defence has served notices of alibi on the State, the State is aware or ought to have been aware that the defence would be raising a defence of alibi. It is not necessary for the defence counsel to put the defence of alibi to the State witnesses during cross examination. The defence is perfectly entitled to lead evidence of alibi based on the notices of alibi served on the State prior to the trial. But he concedes that he did not put to the State witnesses the defence case of alibi during cross examination. This is because the State witnesses would not have known the whereabouts of the two accused at the material time.

11. In his alternative submission, he submits that the Court invoke its inherent power under section 155(4) of the Constitution to order the State’s case to be reopened and he be allowed to cross examine the State witnesses in respect of the defence of alibi so that they may be given the opportunity to reply to the defence case. He says the Court may explore that option because the two accused have a right to a fair trial as guaranteed by section 37(3) of the Constitution.

12. It is instructive to note that I have laboured to set out the relevant details of the notices of alibi because first, it is important to emphasize that the State has been duly made aware of the defence intention to call evidence of alibi at the trial. This is neither a case where the State has been left in the dark so to speak of the kind of defence the accused would be raising nor a case of being caught by surprise. It was aware of the defence of alibi all along. Hence, it should expect evidence of alibi to be called at the trial. See The State -v- Robert Wer & Ors [1988-89] PNGLR 444; N776 and The State -v- Sei Nakiking Tubol & 9 Ors [1994] PNGLR 378; N1206 for the proposition that the defence must give notice of alibi to the State prior to the trial.

13. But the State is faced with a dilemma here; the defence of alibi was never put to its witnesses by the defence counsel during cross examination. Therefore, the issue is; can the Court permit a party to lead evidence in rebuttal when it has breached the rule in Browne -v- Dunn (supra), more so when an objection is raised on that ground during the trial by opposing party?

14. Most of the cases that I have read seem to suggest that where a party like in this case, the defence counsel has failed to cross examine the State witnesses in respect of this defence, the State can raise it at the final submissions on verdict on the basis that the evidence of alibi should not be accepted by the Court as it was not put to the State witnesses during cross examination to give it the opportunity to refute it. For example, in the case The State -v-Tony Pandau Hahuahori (No1) (2002) N2185, a case of murder, the defence first, failed to give notice of alibi to the State and secondly, failed to put the defence of alibi to the State witnesses.

15. At the conclusion of the trial, submissions were made by both counsel in respect of whether the evidence of alibi should be believed and accepted by the Court. Kandakasi J, held inter-alia that, an accused is under an obligation to give notice of any defence of alibi and put in cross-examination the existence of evidence that will directly contradict State evidence or completely exonerate him or her and evidence of any alibi or evidence in rebuttal of a State case not put on notice or put to witnesses on cross-examination may be treated as recent inventions and are therefore unreliable.

16. In another case of The State -v- Raphael Kewangu (2002) N2189, a case of armed robbery, again Kandakasi J, after referring to the case John Jaminan -v- The State (No 2) [1983] PNGLR 318 in a case where identification was in issue, made it plainly clear that:

"The law in respect of alibi evidence is clear. Where an accused fails to put in cross-examination and or gives belated notice of an alibi and calls evidence on that, such evidence should be seen as recent inventions and as unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL). The position was clearly spelt out in the case of John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 by Bredmeyer J in these terms:

‘Firstly, the alibi was never put to the key State witnesses particularly the prosecutrix and Maria who gave evidence of being together with the accused in the hotel lounge and in room 2 in the early part of the evening, nor to the prosecutrix that she did not have sex with the accused, that she was mistaken as to the identity of the man who had sex with her, or that she invented the encounter. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] P.N.G.L.R. 62 (Prentice J) and The State v. Manasseh Voeto [1978] P.N.G.L.R. 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused is reduced. I am not blaming Mr Narokobi specifically for this failure. It is possible that his instructions changed during the course of the trial from consent to alibi. I say that because Mr Narokobi cross-examined the prosecutrix at length on consent not on the question of identity. Later in the trial the defence of alibi was still not revealed by the cross-examination of the prosecution witnesses.

Secondly, the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact - and here we are dealing with facts - its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused.’

In that case, Mr. Jaminan raised the defence of alibi to a multiple charge of rape. It seems he raised the issue of consent and that led to his trial. But during the trial, he introduced evidence of being else where from the scene of the alleged offences. He failed to give notice of that to the prosecution and also failed to put that fact to the State’s witnesses in cross-examination. Ultimately, therefore his claim of alibi was rejected both as unreliable and as recent inventions.

This is what happens to an accused person who fails to put the prosecution on notice of its defence and evidence that may contradict or rebut any evidence the prosecution may call. Both counsel in the present case correctly agree in my view that, the same should apply against the State who fails to give the defence notice of critical evidence against an accused person. If the State fails to give such notice and call surprised witnesses and introduce totally new evidence, it amounts to nothing short of an unfair trial. This is because, the accused has not been sufficiently notify of the case against him before hand so that he could consider his position and decided to either deny or admit the charge against him before he is tried. Such a practice, if allowed would in my view, amount to a breach of the s. 37(3) and (4) of the Constitution." (Emphasis is added).

17. Even in John Jaminan’s case (supra), the Court did not decide an objection to evidence of alibi being led by the defence at the trial. It was only after the trial was completed and submissions on verdict that the Court was urged by the State not to accept the evidence of alibi because it was a belated defence raised at trial by the accused who was facing rape charges, with no prior notice to the State. So that case does not help us much.

18. But in referring to these cases, the point I am trying to emphasize here is that, the resultant effect of a failure to comply with the rule in Browne -v- Dunn (supra), in that evidence of alibi or evidence in rebuttal of the State’s case for that matter, not put to State witnesses during cross examination may be treated as recent inventions, therefore unreliable and the Court may reject it. I am using the word "may" here instead of "shall" because it is a discretionary matter for the Court to decide. Further, it seems that the Court’s decision whether to accept, reject completely or place little weight on the evidence of a witness or witnesses who have breached the rule in Browne -v- Dunn (supra) have been decided by the Court after close of each party’s case and receiving of final submissions on verdict.

19. But none of these cases had ruled on objections raised by a party during a trial on the basis of a breach of the rule in Browne -v- Dunn (supra). Even the case of Bernard Vargi (supra) which Ms Libai has cited does not say that the Court ruled on an objection based on the breach of the rule in Browne -v- Dunn (supra). It is a case where the Court decided whether a notice of alibi forms part of the evidence of the defence case and where a failure to lead evidence in accordance with it, would entitle a trial judge to ask questions in relation to it. The present case is a case where an objection has been raised to the calling of evidence by the defence on the basis that it is in breach of the rule in Browne -v- Dunn (supra) because the defence counsel did not put the defence of alibi to the witnesses for the State.

20. It is also instructive to note that, in any given trial or hearing in a Court of law as opposed to quasi judicial bodies, rules of evidence must strictly be observed by all parties including the Court. For example, evidence of witnesses must not be hearsay unless they fall into one of the exceptions of the rule of hearsay evidence or the evidence is irrelevant. There are instances where objections maybe raised by parties during the trial or hearing like questions asked by counsel during cross examination is irrelevant to the issue at hand. But as I have said earlier, the objection by the State in this case is that, it would be unfair to the State if the defence is allowed to call evidence of alibi when it did not put the defence of alibi to the State witnesses in cross examination to enable them to reply to it.

21. This leads me to the third aspect of the objection by the State and that is, the appreciation of the rule in Browne -v- Dunn (supra), itself and its applicable in a given case. I respectfully adopt the definition given by Wan Wells, formerly a Justice of the Supreme Court of South Australia in Evidence and Advocacy, Butterworth (1988) which was cited by the Supreme Court in Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC 927:

"The spirit of the rule is that a witness’s evidence should not be impeached behind his back; if the opposing side has called, or intends to call, evidence that controverts or significantly enlarges part of, or all, that the witness has deposed to, he should be made aware of the substance of that evidence, and be given a fair opportunity of meeting it. The rule has nothing to say about the technique by which the opportunity is to be afforded, other than that it must be afforded and comprehensively."

22. The rule is actually a principle of fairness. It is a principle of evidence adopted as part of the underlying law of Papua New Guinea for control of both civil and criminal proceedings. See Cosmos Kutau Kitawal & Anor’s case (supra). In that case also, the Supreme Court gives examples of the application of the rule in the following cases at pp 31 - 33:

"if counsel does not put things to a witness in cross-examination, there should be no complaint if the witness is believed (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), National Court, Wilson J);

- any matters upon which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction; and failure to do this may be held to imply acceptance of the evidence-in-chief (Sidi Adevu v MVIT [1994] PNGLR 57, Supreme Court, Kapi DCJ, Andrew J, Sakora J; though in that case the rule in Browne v Dunn did not provide a good ground of appeal against a decision of the National Court to refuse a claim as all that the defendant had done was to put the plaintiff to proof and the trial judge held properly that the plaintiff had failed to prove his case on the balance of probabilities);

- evidence not challenged should be taken to have been accepted (Haiveta v Wingti (No 1) [1994] PNGLR 160, National Court, Sheehan J);

- in order for a party’s claim to be considered credible, the party must in fairness put its case to the other side’s witnesses by way of cross-examination (The State v Kevin Anis (2003) N2360, National Court, Kandakasi J);

- if a counsel intends to submit that a witness has lied, the counsel must have put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain (The State v Pennias Mokei (No 1) (2004) N2606, National Court, Cannings J).

164. However, with respect, we do not agree with the trial judge that the rule in Browne v Dunn requires that every detail of the defence case must be put in cross-examination to the State witnesses. It requires that the gist or substance of the proposed defence be put to the State witnesses, in so far as it concerns that particular witness; not that every detail be put to them. (R v Brown and Brown [1980] TASRp 8; [1980] Tas R 61). Furthermore, if prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview, it may not be necessary to cross-examine to the level of detail that would otherwise be required. The rule is inherently flexible and its requirements vary from case to case, the principal aim being to impose fairness on the trial procedure. If a witness’s evidence-in-chief is "incredible or romancing" a detailed cross-examination is not necessary (R v Byczko (No 2) (1977) 17 SASR 460). If the examiner-in-chief traverses the opposition case thoroughly, the cross-examiner will not need to cover the same ground. An allegation may be so obviously a part of the defence case it is not necessary to formally put it to the State witnesses."

23. The Supreme Court concluded that a breach of the rule in Browne -v- Dunn (supra) does not necessarily render the evidence of the party in breach, a recent invention or unreliable and leads to automatic rejection of the evidence. But what can happen is:

"169. First, notwithstanding the general rule against a party splitting its case, the opponent will be allowed to recall their witness and put forward new evidence to rebut the evidence that has been put in breach of the rule in Browne v Dunn (eg R v Killick (1980) 24 SASR 137).

170. Secondly, the tribunal of fact will be entitled to take the failure to cross-examine into account in determining which party’s account is to be accepted (eg Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505).

171. Thirdly, the cross-examiner in breach of the rule, will be precluded from calling evidence on the matter (eg R v Schneidas (No 2) (1981) 4 A Crim R 101)."

24. From the Supreme Court’s decision in Cosmos Kutau Kitawal & Anor’s case (supra), it is clear that there are three suggested options that the Court may take where a breach of the rule in Browne -v- Dunn (supra) has occurred. First, for the Court to order the case to be reopened, be it the State’s case or the defence case at the request of the party affected by the breach, so that the party affected by the breach may put forward new evidence to rebut the evidence that has been put in breach of the rule in Browne -v- Dunn (supra).

25. Secondly, the Court will be entitled to take the failure to cross examine into account in determining which party’s account should be accepted. I infer from this that, no objection is taken during the trial on evidence that is led in breach of the rule in Browne -v- Dunn (supra). Thirdly, the party in breach of the rule in Browne -v- Dunn (supra) will be precluded from calling evidence on the matter. I infer from this that objection is raised during the trial and Court rules on it; precluding the party in breach from calling evidence on the matter.

26. Further, the decision of the National Court giving raise to the decision of the Supreme Court in Cosmos Kutau Kituwal’s case (supra) did not rule on an objection to evidence call in breach of the rule in Browne -v- Dunn (supra) during the trial. It was after close of each party’s case, so again, the Supreme Court decision does not state whether the Court may rule on an objection by a party in respect of a breach of the rule in Browne -v- Dunn (supra) and how the Court should rule when such an objection is raised.

27. But what is clear from that Supreme Court decision is that, the underlying reason for the Court to consider which option to take is that, a breach or a party’s failure to adhere to the rule in Browne -v- Dunn (supra), is not necessarily fatal to that party’s case but will go to the question of the weight to be attached to the unchallenged testimony. In the present case, as I have said above, the State has been duly made aware by the defence that the defence will be raising the defence of alibi. This means that, the defence will be leading evidence of alibi at trial. I believe this is exactly what the defence is trying to do here. Hence, it was and is incumbent on the State to investigate the defence’s defence of alibi before the trial so that it may bring evidence to refute the defence.

28. But as I said earlier, the State is faced with a dilemma and that is, the defence did not put the defence of alibi to the State witnesses during cross examination. In my view, a failure by a party to cross examine the opposing party’s witnesses on a matter is in breach of the rule in Browne -v- Dunn (supra) can be a ground of objection during trial. Therefore, in the present case the failure by the defence counsel to cross examine State witnesses in respect of the defence of alibi can be a ground of objection by the State where the defence seeks to call evidence of alibi at the trial.

29. This leads me to the second aspect of the objection and that is the grounds of objection under the rules of evidence. I emphasize again that an objection has been raised by the State during the trial that the calling of evidence of alibi by the defence is in breach of the rule in Browne v Dunn (supra). It is not a case where the State has allowed the defence to call evidence of alibi and would address the Court on its worthiness and reliability after completion of all evidence from both sides and final submissions on verdict. In my respectful opinion, once a call is made, the Court is entitled to rule on the objection there are then. In my respectful opinion also, it is also entitled to rule in favor of the objection and preclude the party in breach of the rule in Browne v Dunn (supra) from calling evidence on the matter like in this case the defence be precluded from calling evidence of alibi.

30. It is my respectful opinion also that there is a stark difference between an objection raised during the trial where a party is in breach of the rule in Browne -v- Dunn (supra) as opposed to submissions made on verdict after close of all evidence from the parties on the reliability of the evidence of a party’s witnesses in breach of the rule in Browne -v- Dunn (supra) because the resultant effect are different.

31. The former has the effect of precluding the party in breach of the rule in Browne -v- Dunn (supra) from calling evidence on the matter. This means that the Court will not have the benefit of knowing the evidence of the party in breach of the rule on the matter. In the latter’s case, it has the effect of not completely precluding the evidence but allowing evidence to be called and the Court will decide at the end of the day whether or not to accept the evidence and rely on it. It is a question of weight to be given to the evidence that is in breach of the rule in Browne -v- Dunn (supra).

32. Since the State has made the call in the present case, I consider that it permissible to raise the object now and let the Court rule on the objection rather than later notwithstanding that the defence has served on the State, notices of alibi. Therefore, I will take the third option suggested by the Supreme Court in Cosmos Kutau Kitawal & Anor’s case (supra) and that is, the defence is precluded from calling evidence of alibi. It follows that, I am satisfied that the State has made out its objection. I uphold it.

33. In respect of the alternative submission of the defence, I reject it because in my view, it is misconceived. Whilst it is correct that the Court may permit the reopening of a party’s case to allow witnesses to be recalled and put forward new evidence to rebut the evidence that has been put in breach of the rule in Browne -v- Dunn (supra), the exercise of the Court’s inherent power under section 155(4) of the Constitution must be exercised judicially to do justice in a given case.

34. In the present case, it is clear to me that the defence counsel’s omission to cross examine the State witnesses in respect of the defence of alibi appears to be one of ignorance and carelessness. Should the two accused be penalised by their counsel’s failure to cross examine the State witnesses in respect of the defence of alibi? There has been no submissions made to persuade me that ignorance and carelessness of defence counsel can be a ground for the Court to invoke its inherent power under section 155(4) of the Constitution to reopen a case. Further, there had been no submissions made to show that this is an appropriate case where the Court’s inherent power under section 155(4) of the Constitution should be exercised in favour of the two accused.

35. In my view also, the defence cannot seek refuge under section 37(3) of the Constitution because it is inapplicable in the present case. It states, "A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court." This is not a case where the two accused are alleged to have been denied a fair hearing within a reasonable time. This is a case where they, through their counsel failed to put their case to the State witnesses so as to give the State witnesses opportunity to respond.

36. Further, I consider that, to permit the defence counsel to cross examine the State witnesses in respect of the defence of alibi by ordering the State’s case to be reopened would be seen as the Court giving its approval or acquiescing defence counsel’s failure or omission to have a second go at the State witnesses. In my view, it would be unfair to the State as it has closed its case. I will not permit this to happen in this case.

37. It is also a case where the State is not making the application to reopen its case so that it maybe given the opportunity to call new evidence to refute the evidence of the defence witnesses. It is a case where the State has raised an objection on the basis that the defence has breached the rule in Browne -v- Duun (supra). Therefore, the defence counsel’s submission that the Court order the State to reopen its case because the two accused are entitled to a fair trial under section 37(3) of the Constitution is, in my view, misconceived and I reject it.

38. From the foregoing discussions and summarizing them, it is clear to me that raising an objection to evidence being led by a party because it is in breach or a party has failed to comply with the rule in Browne -v- Dunn (supra) is permissible or can be a ground of objection as a rule of fairness. Once it is raised by a party during trial, the Court is perfectly entitled to rule on it. If the objection is sufficiently established, the Court is entitled to preclude evidence being led on the matter that is in breach of the rule in Browne -v- Dunn (supra).

39. For these reasons, I am inclined to take the third approach as suggested by the Supreme Court in Cosmos Kutau Kitawal & Anor’s case (supra) in the present case. I conclude therefore, that, the objection by the State on this ground has basis and the State has sufficiently demonstrated to my satisfaction that, the defence’s intention to call evidence of alibi is in breach of the rule in Browne -v- Dunn (supra). I uphold the objection and order that no evidence be led in respect of the defence of alibi by the defence.

Ruling accordingly.

_______________________________________

Acting Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused