State v Malu [2025] PGNC 324; N11459 (8 July 2025)

N11459

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 2127 OF 2023

THE STATE

V

JANET KUND MALU

MINJ: CROWLEY J
7, 8, JULY 2025

EVIDENCE - Witnesses - Hostile witness - Prior inconsistent statement - Leave to have witness declared hostile- Discretion of court - Circumstances in which statement made - Relevant considerations - Leave refused - Evidence Act (Ch No 48), ss 22, 23.

Held

(1) The right to examine and cross-examine a witness as to prior inconsistent statements under the Evidence Act, s 22 and s 23, is a discretionary one.

(2) In exercising the discretion to allow a party to cross examine its own witness, the court should ascertain whether the prior inconsistent statement was made and the circumstances surrounding the making of it.

(3) The fact of a prior inconsistent statement does not automatically mean the witness’ testimony is unreliable.

(4) Application for a witness to be declared hostile should be made as soon as practicable after the party has established a prior inconsistent statement and the reasons for the witnesses hostility to that parties case.

Cases cited
State v Nawa and Yakola [1991] PNGLR 76
Kandakson v The State (1998) SC558

Counsel
Ms. Tanja Kalg, for the State
Mr. Fabian Timbi, for the accused

1. CROWLEY J: The accused was charged with murder of her husband Gilma Kolngo (the deceased) on the morning of 17 June 2022. The State’s case is that between 8am and 9am that morning the accused and her husband were fighting inside their house. During that fight, it is alleged that the accused used a branch to hit the deceased. She struck him on the right side of his neck so hard that it killed him. The Postmortem report (tendered without objection as Exhibit 5) concluded the cause of death was “blunt injury to the right neck sustained from a forceful impact with a solid object.”
   
2. When the trial commenced the State asked for an adjournment to conference with a witness who had just been bought to the court by the police. The Prosecutor also informed the Court that another three prosecution witnesses were not at court and the Police were unable to locate them. The adjournment was granted.
   
3. When proceedings resumed the Prosecutor informed the Court that the available witness Peter Gono was reluctant to give evidence. In an effort both to demonstrate this and provide sworn evidence as to the difficulties the Prosecution was having with its witnesses the Prosecutor called the arresting officer Constable Matthew Kuahen.
   
4. Constable Kuahen’s statement had, prior to the adjournment, been tendered without objection and was Exhibit 2 in the trial. Constable Kuahen gave evidence that he had taken statements from four witnesses on the morning of 18 June 2022. Those witnesses were Peter Gono, Par Kolngo, Wune Auen and Alfred Kaman. The officer then gave evidence that on the 6th of July 2025 (the day before trial) he had informed those witnesses they needed to come to court for the trial. When asked if he could explain why most of those witnesses didn’t attend, Constable Kuahen said he was aware that there had been a peace ceremony and a live pig and money had been given to the deceased relatives. In relation to Peter Gono, Constable Kuahen said that Mr Gono lived between the accused and the deceased relatives. That may account for Mr Gono discomfort in giving evidence.
   
5. When asked if he could produce Par Kolngo, Wuan Auen and Alfred Kaman the following day to give evidence Constable Kuahen said he would do his best but thought he would be unable to produce the other three witnesses. He had driven around for 3 hours on the morning of the trial looking for the witnesses and had only found Mr Gono on a bus. That is how Mr Gono was at the court.
   
6. Mr Gono was called as a witness. He worked as a Chaplin in a secondary school. His evidence was that he was a neighbour of the accused and the deceased though his house was some distance from theirs. When asked for his recollections of 17 June 2022 he said it was a long time ago and he couldn’t remember much.
   
7. His answers to questions were a little obstructive. A summary of his story that came out piecemeal was, that on the morning of 17 June 2022, he saw a little boy walking along the road and heard him say that Gilma Kolngo had died. Mr Gono went to the house of his neighbours. He heard people inside crying and wailing. They brought the body of the deceased outside and Mr Gono took it to the road and put it in the car.
   
8. It was put to him that he had previously given a statement to the police which he accepted. He accepted that the signature on the statement was his. It was put to him that in that statement he gave on the morning of 17 June 2022 he said he had heard the deceased and accused arguing. Later he had gone to the house, gone inside, seen the deceased, tried to wake him up, seen the accused in the house and then carried the body of the deceased outside. In his evidence to the Court he denied all this. Mr Gono maintained his story that he never entered the house and that the body of the deceased was brought out to him.
   
9. It was put to Mr Gono by the Prosecutor that the version he gave in court was different to the version he told police. Mr Gono accepted that. When asked which version was true Mr Gono said “They came and got us. They took us, we gave statements to maintain peace in our community. The accused people have paid compensation and there is peace now. Its been three years. There is peace in our village now”.
   
10. He was asked why he was reluctant to give evidence in court and he said because he had never given evidence in court before. He asked if there was any reason for the change in his story and he said that it was his first time in court and he must speak the truth.
    
11. It was put to Mr Gono that what he told the police was a lie. He said he was there as a witness of peace because they all lived close together and he didn’t want any problems.
    
12. No objection was taken to form or content of the Prosecutors examination of Mr Gono.
    
13. The defence then briefly cross examine Mr Gono. When the Prosecutor re-examined she asked if the witness could be declared hostile. I pointed out that re-examination was not the time to be asking for a witness to be declared hostile and I wondered what she hoped to achieve. She submitted that a hostile witness declaration would result in me placing less weight on Mr Gono evidence.
    
14. Defence counsel strongly objected to the witness being declared hostile. He hoped to persuade me that the story Mr Gono told police was a lie but the story Mr Gono told in Court was the truth. I pointed out that if I took that view, it internally weakens Mr Gono credibility because it assumes that he has previously lied to police.
    
15. Section 22 and 23 of the Evidence Act are the relevant provisions. Section 22 permits a witness to be asked if he had made a prior inconsistent statement. Section 23 allows a witness to be cross-examined as to their prior inconsistent statement. Whether a Court will allow a witness to be cross examined by the party who called them is discretionary (State v Nawa and Yakola [1991] PNGLR 76).
    
16. In Kandakson v The State (1998) SC558 it was held that judges should warn themselves that evidence of a witness who has given a prior inconsistent statement may be unreliable.
    
17. The inherent contradiction in the testimony of a witness who admits giving a prior inconsistent statement does not create an “inflexible rule of law or practices” that the witness’s evidence is unreliable (Kandakson). In such cases the trial judge should consider the circumstances in which one or both of the statements were given. Such an inquiry may reveal an explanation for the inconsistency which demonstrates the witness is, overall, reliable.
    
18. If I am satisfied that a prior inconsistent statement has been made, then, in exercising my discretion I should have regard to the circumstances surrounding that statement.
    
19. Mr Gono told the police that he gave his statement to maintain the peace in his community. Whereas he said his testimony in Court was “the truth” because it was the first time he had given evidence and he had to tell the truth.
    
20. As I identified above there is an internal weakness in Mr Gono’s explanation because it demonstrates that he is a man who is prepared to lie to authority figures, in this case the police. His justification, that of keeping the peace in the village, though noble, does little to repair his credibility. The problem it creates is this; there was peace in the village because the accused family had paid compensation to the deceased family. Having the accused convicted of murder when the village feels the matter is resolved, could create disharmony. As such Mr Gono may be in the same position with the Court as he was with the police, having to lie to authority in order to keep the peace in his village.
    
21. The Prosecutor seeks the hostile witness declaration so that I give the evidence of Mr Gono less weight. She succeeded in establishing that Mr Gono had given a prior inconsistent statement and his reason for doing that. Having considered Mr Gono’s explanation, I accept that his evidence is unreliable. Therefore there is little utility in having him declared hostile. The result the Prosecutor seeks has been achieved.
    
22. As a matter of procedure, I note that an application to have a witness declared hostile should be made after the prosecutor has produced sufficient evidence to the Court as to the circumstance of the previous inconsistent statement and reasons for the hostility to the State’s case. Coming, as this application did, in re-examination was too late. The Prosecutor obtained sufficient evidence in examination-in-chief and should have made the application then. Further, to allow a hostile witness application in re-examination could create an unfairness to the accused who does not have an opportunity to further cross-examine.
    
23. I am satisfied that Mr Gono made a prior inconsistent statement. That is self-evident but Mr Gono admitted to it in any event. Having heard his explanation for making that statement I am inclined to give his evidence less weight on the basis that he has demonstrated he lies to authority to keep peace in his village. But I dismiss the application to have him declared hostile because it was made too late and is redundant.
    

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