State v Kevin (No 2) [2021] PGNC 625; N9672 (24 November 2021)

N9672

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 838 OF 2019

THE STATE

V

ABE KEVIN
(No. 2)

Kimbe: Numapo J
2021: 21^st October, 24^th November

CRIMINAL LAW – Alibi Notice & Belated Alibi – Order 4 Rule 4 (New Order 8 Rule 3) Criminal Practice Rules – Constitutional Rights & Procedural Fairness, ss. 37 & 59 of constitution - Discretion to grant or refuse leave – Alibi as primary and only defence available - Accused entitled to call possible alibi witness.

Cases Cited:
Papua New Guinean Cases

State v Tivet (No.2) [2019] PGNC 184; N7914
State v John Baimo Kaole (2009) N3842
Kohu Morea v The State (2020) SC1957
Kayo v Pawa (2015) SC1496
State v Tony Emmanuel (No.1) (2012) N5124
State v Sei Nakiking Kubol and 8 Ors [1994] PNGLR 378
State v Abraham Eliuda & Ors (2018) N9163

Overseas Cases

Brown v Dunn (1893) 6 R 67 (h)

Counsel:

N. Pare, for the State
B. Takua, for the Defence

RULING ON BELATED NOTICE OF ALIBI AND ADDITIONAL WITNESSES

24^th November, 2021

1. NUMAPO J: This is a ruling on the calling of additional witnesses and the belated notice of alibi after the prosecution had closed its case. Defence had not indicated during the Pre-trial hearing that it would be calling additional witness apart from the accused himself. Defence in its evidence raised a possible defence of alibi but failed to file the relevant notice of alibi pursuant to the Order 4 Rule 4 of the Criminal Practice Rules 1987 (CPR) (Order 8 Rule 3 in the new Criminal Practice Rules 2022). It reads:
   

Notice of Alibi

(1) “An accused shall not upon his or her trial, without leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, the accused files and serves on the prosecutor a notice of alibi in form 26, signed by the accused or his lawyer.”

2. Form 26 basically requires the accused to state where he was on the date and time of the alleged offence and whom he was with, who can be called to support his alibi.
   
3. Mr. Takua for the defence sought leave of court to call three possible alibi witnesses who were not listed in the Pre-trial Review Statement after the accused had given his evidence. However, only one witness gave evidence whilst the other two witnesses did not turn up to give evidence. The witness who gave evidence is also a remandee from Lakiemata Correctional Services.
   
4. Mr. Pare for the State objected to calling of additional witnesses when they were not listed as witnesses in the Pre-trial Review Statement and submitted that it would be prejudicial to the prosecution’s case to raise a defence of alibi belatedly after the prosecution had closed its case. This would be in breach of Order 4 Rule 4 (new Order 8 Rule 3) of the CPR. Counsel further submitted that the defence had failed during the cross-examination of the State witnesses to assert facts to the witnesses which it would later rely on, in its defence of alibi (State v Tivet (No.2) [2019] PGNC 184; N7914). This is also in breach of the rule in Brown v Dunn (1893) 6 R 67 (h). Counsel urged the court to exercise its discretion and refuse the belated defence of alibi on the grounds of lack of proper notice. To overlook this important requirement of alibi notice would be a total disregard to the principles of procedural fairness and fundamentally detrimental to the prosecution’s case (State v John Baimo Kaole (2009) N3842).
   
5. I directed Counsels to address the court on two preliminary issues:
   
   • (i) Whether the defence can call witnesses that are not listed in the Pre-trial Review Statement and,
     
   • (ii) Whether defence can file a belated notice of alibi after the prosecution had closed its case?
     
6. Mr Takua submitted that the overriding consideration is section 37 of the Constitution which guarantees protection of the law to the accused. Counsel referred to a Supreme Court case of Kohu Morea v The State (2020) SC1957 in which the Supreme Court emphasized the importance of the Constitutional Rights particularly sections 37 and 59 of the Constitution and the duties of the court when conducting a criminal trial. In this case, the Supreme Court said:
   

“Section 37 is a special constitutional provision which confers on every person charged with an offence, the right to have protection of the law.....A breach of any of those rights will constitute a ground for this Court to interfere with a decision of a primary judge. Section 59 of the Constitution ensures that fairness is fully accorded to every person who is likely to be affected by the decision of a maker, particularly, those charged with an offence. Such a person must be given an opportunity to be fully and properly heard before a decision is made.”

7. Counsel also made reference to the case of Kayo v Pawa (2015) SC1496; where the Supreme Court held that:
   

“The principles of natural justice or procedural fairness are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognized by Section 59 of the Constitution, is; the duty to act fairly, and, in principle, to be seen to act fairly. These principles dictate that a person whose interests are likely to be affected by a judicial decision must be accorded an opportunity to be heard by the judicial officer, before a decision is made...”

8. The Court went onto say:
   

“The fundamental rights of a person (charged with an offence) given by s. 37 of the Constitution are paramount to all other considerations.....”

9. Mr Takua further submitted that, calling witnesses who were not named in the Pre-Trial Review Statement is not a valid ground to deny the accused his rights to the full protection of the law given to him under the constitution. The Pre-Trial Review Statement merely assists the court in determining the duration of the trial and other preliminary matters before the trial proper begins. The accused has the right to fully defend himself and this includes calling of witnesses belatedly if need be, to testify in his defence. There is no evidence suggesting that the prosecution’s case would be severely disadvantaged if the alibi notice is filed belatedly. The accused’s assertion that he was not there at the crime scene deserves to be corroborated even without the notice of alibi as this is the only defence he has to this charge. Defence had sought leave of court to call additional witnesses and it is well within the discretion of the court to grant or refuse leave. Accused however, must be given every opportunity to properly defend himself.
   
10. Counsel referred to the case of State v Tony Emmanuel (No.1) (2012) N5124, where the defence did not give a formal notice of alibi as required by the Rules and the issue was then raised whether or not the defence can raise the defence of alibi belatedly? Kirriwom J (as he then was) held that:
    

“...These witnesses gave alibi evidence although no notice of alibi was filed and served as required by the Criminal Procedure Rules. Failure to give alibi notice is not critical to defence raising alibi defence or calling alibi witnesses. Some judges have refused to entertain defence of alibi where notice is not given; (The State v Sei Nakiking Kubol and 8 Ors [1994] PNGLR 378). I don’t think this is correct. Accused is entitled to say whatever he wants in his defence during his trial and if his evidence hinged on alibi but he failed to give alibi notice under the Rules, what else is he to tell the court if he can’t tell the court that he was not where the prosecution alleged he was and committed the crime? In my view, if the accused gave no alibi notice he is entitled to raise that defence and call evidence of alibi and the judge must consider the evidence in the light of all the evidence in the trial to determine whether the alibi is strong and sustainable. However, it is trite law that a surprise alibi defence should be treated with caution and the court must give weight as it sees fit.”

11. This view was later adopted and applied in The State v Sylvester Tivat (No.2) N7914.
    
12. Mr Pare submitted however, that court processes and procedures is governed by rules and its compliance is important. In this instance, the CPR makes it mandatory that an alibi notice must be filed if the defence is to introduce evidence of alibi and rely on it as its primary defence to the charge. Prosecution is entitled to such notice in advance so as to prepare its case. It also prevents trial by ambush particularly where one side is not aware of the other side’s evidence or witnesses until after the trial. The Pre-Trial Review form has a specific provision on Notice of Alibi which obligates the defence to file a notice if it is going to raise a defence of alibi. This is no ordinary defence and that is why CPR requires that notice is given.
    
13. I have considered the arguments advanced by both Counsels and will respond in this manner. It became obvious to me that there are two contrasting views expressed in the case laws with respect to belated notice of alibi. One view is the one held in State v Tony Emmanuel (supra) which allows for a belated alibi notice and the other view is that expressed in State v Sei Nakiking Kubol (supra) where the court refused to accept the belated defence of alibi after the trial had commenced. It appears that the judges are presently divided on this issue and so perhaps, the Supreme Court might one day, in an appropriate case, settle on this for future guidance.
    
14. The Pre-Trial Review Statement serves two primary purposes. Firstly, it assists the court in determining how much time and resources it would require and therefore, allocate accordingly for the particular trial and; secondly, it enables the parties to narrow down and agree on the issue(s) for trial. In a typical Pre-Trial hearing/conference, parties would indicate the type of evidence to be adduced, number of witnesses they intend to call and the anticipated time frame to present their respective cases. It also enables the parties to inform the court of anything else that is additionally required such as expert witnesses, additional witnesses, forensic evidence, and specific defence such as the defence of alibi etc. Issues pertaining to credibility is also considered during the pre-trial hearing which can change the prosecution’s plan or the defence strategy in significant ways. Calling of witnesses is driven by evidence.
    
15. Inclusion or exclusion of witnesses is done for a number of reasons. Grounds for exclusion would include things like; repetition of evidence, risks of weakening the evidence, introduction of hostile witnesses and time constraints etc. Inclusion of additional witnesses would be for the purposes of, amongst others, reinforcing and/or corroborating evidence, respond specifically to new issues raised or assertions made. It is not unusual for the parties to inform the court mid-way through the trial that it won’t be calling anymore witnesses even if they were listed in the Pre-Trial Review Statement, conversely, parties may through leave of the court seek to call additional witness not listed. There is no hard and fast rules on that. It is within the discretion of the court to grant or refuse leave. Evidence from these additional witnesses however, should only be confined to the issue(s) raised or the assertion made. The requirements of Pre-Trial Review essentially allows parties a greater flexibility to conduct their cases in the manner they see fit as long as it is done within the confines of the rules.
    
16. On the second issue I start on the premise that defence of alibi is a proper legal defence known to law and as such appropriate notice is required under the Rules before evidence on alibi can be called. This is particularly to avoid any surprises during trial and also is not prejudicial to the prosecution’s case. Parties are required to give each other sufficient notice as part of the discovery process. Procedural fairness requires parties to put all their cards on the table and make each other aware of what each intends to do.
    
17. Defence of alibi however, is not an affirmative defence therefore, the accused does not have the burden to prove an alibi. The onus of proof rests with the prosecution at all times. An accused merely asserts the defence to raise a reasonable doubt as to whether the accused could have been the one who committed the crime. For the defence of alibi to be accepted, firstly; there must be a statement or evidence indicating that the accused was not present at the crime scene when the crime was committed; secondly, an explanation of the accused’s whereabouts at the time and thirdly; the names of the alibi witnesses, those the accused claimed to be with when the offence was committed. All these are must be shown through evidence.
    
18. It is not uncommon for the accused to say when giving evidence that, he was not at the crime scene when the offence was committed. This kind of evidence suggests a possible alibi. The view in Tony Emmanuel (supra) is that there is no harm in accepting this as a defence of alibi notwithstanding that notice was not given or that it was raised belatedly. Once raised the accused is entitled to call witnesses to corroborate his account on his whereabouts on the day in question. This is especially so, if alibi is the only primary defence the accused has to the charge, the reason why he pleaded not guilty on arraignment. I agree with Mr Takua that to deny the accused the opportunity to call his witnesses to confirm his alibi would be in breach of his rights under the constitution. For instance, if the accused said he was with Joe Blow at a different location from the crime scene when the crime was committed then he should be allowed to call Joe Blow as his alibi witness to either confirm or deny that he was with him at the particular time and place, irrespective of whether he gave alibi notice or not. Simply put, if alibi is raised then defence is entitled to call evidence on it.
    
19. Whilst I agree with the prosecution that a belated alibi notice might be prejudicial to its case, I do not necessarily agree that all hope of securing a conviction is lost if leave is granted for defence to call alibi evidence. With the effective use of cross-examination, the prosecution can challenge the alibi assertion including the credibility of the alibi witness. In this case for example; the only alibi witness is an inmate who shares the same cell block with the accused at Lakiemata Correctional Services facility. Is he a credible and reliable witness for the defence? These are matters for the prosecution to raise.
    
20. I hold the view that if evidence suggests a defence of alibi then the accused is entitled to call evidence to show that he was not at the crime scene when the offence was committed and therefore, could not have been the perpetrator. Defence should be given the opportunity to call on its possible alibi witnesses to testify, irrespective of whether an alibi notice is given or not. This is especially so, if alibi is the only defence the accused has. I made the similar observation in a recent case of; State v Abraham Eliuda & Ors (2018) N9163 where I said at page 18 (para 5 & 6):
    

“For the record, the defence had not filed any formal defence of alibi and this might explain why the witnesses were not called to give evidence however, I can only assume. Nonetheless, it does not prevent the defence from calling these possible alibi witnesses where evidence suggest a defence of alibi.”

21. I, therefore, rule in favour of the defence to call its alibi witnesses.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence