Warakau v The State [1980] PGSC 3; SC184 (3 November 1980)

Unreported Supreme Court Decisions

SC184

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 11 OF 1980
BETWEEN: RAPHAEL WARAKAU
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kidu CJ Greville Smith Miles JJ
29 September 1980
28-29 October 1980
3 November 1980

KIDU CJ GREVILLE SMITH MILES JJ: This is an appeal and an application for leave to appeal against conviction by the learned trial judge sitting at Popondetta, Northern Province, on 3rd June, 1980. The appellant was charged that on a date between 28th February 1980 and 7th March 1980 in Papua New Guinea, he being then employed in the Public Service of Papua New Guinea stole K338.25 in cash which came into his possession by virtue of his employment.

The case against the appellant was essentially a circumstantial one. The appellant had received K1,500 in cash in his capacity as the Provincial Electoral Officer with the responsibility of supervising some local government elections. In the early hours of 29th February 1980 the electoral office at Popondetta was broken into and some money was stolen. When the police enquired into the burglary they found that there was a shortage in the election funds which had been in the control of the appellant. The shortage amounted to K338.25. The prosecution alleged that the only reasonable inference in the circumstances was that the appellant had fraudulently converted that amount of money to his own use and was therefore guilty of stealing as defined in s. 377 (1) of the Criminal Code.

The appellant did not give or call evidence in the trial, nor did he make an unsworn statement. His counsel took the course of submitting that the prosecution had not discharged the onus of proof in proving the guilt of his client beyond a reasonable doubt and in particular that there was a reasonable inference open on the evidence which was inconsistent with the guilt of the appellant, namely that the money found to be missing was stolen in the burglary on 29th February, 1980.

There were several points raised in the notice of appeal filed in the Court but before we can deal with them it is necessary to refer to a threshold matter. The appellant sought leave to adduce fresh evidence “on the ground that the justice of the case warrants it being allowed”. When the matter commenced before us there was simply no material before the court on which the application could be based. At the invitation of the Court the matter was adjourned in order to enable appellant’s counsel to put the material upon which he proposed to rely into proper affidavit form.

When the matter came on for hearing again before us on 28th October, 1980 Counsel renewed his submission that this Court should permit the appellant to present oral evidence on the appeal. In support of this application counsel sought to put in three affidavits, all sworn by himself on 14th October, 1980. Mr. Roddenby for the State objected to the admission of these affidavits in that they consisted of a narration by the appellant’s counsel of what other people had told him and therefore infringed the rule against hearsay. The objection was well taken but the Court decided to receive the affidavits for the limited purpose of deciding whether the appellant should be permitted to call oral evidence on the hearing of the appeal.

The first of the affidavits sets out the contents of a telephone conversation between counsel in Port Moresby and a Correctional Institution Officer, Mr. Andy Sisipa, at Popondetta. Mr. Sisipa was acting as an interpreter for a prisoner, Martin Kaua Lumis. It is unnecessary to set out the contents of the affidavit. It is enough to say that it was alleged that Mr. Sisipa said that Lumis told him certain things which if believed would support a submission that it was Lumis and not the appellant who was responsible for the theft of the monies for which the appellant had been convicted. In reliance on this affidavit Counsel submitted that Lumis should give oral evidence before this Court.

The second affidavit related a conversation between counsel and the Principal Electoral Officer from the Electoral Commission setting out some of the practices and procedures relating to funds used for election purposes. Counsel submitted that he should be allowed to call this officer to give evidence of such matters.

The third affidavit was in general terms stating counsel’s own view that the appellant himself should be permitted to give evidence on the appeal. This affidavit is quite immaterial and may be disregarded.

We wish to make it quite clear that although we received these affidavits for the limited purpose stated, this was done in the very exceptional circumstances of the case in order to avoid the possibility of injustice to the appellant. It is not to be thought that the Court will receive such affidavits by counsel as a matter of course. The proper procedure is to obtain an affidavit from the witness upon which the witness may if desired be cross-examined. In the absence of such an affidavit from the proposed witness there may be another affidavit, from counsel if necessary, explaining that absence and furnishing the best evidence available of what the witness will say. It must also be clear that the proposed witness is prepared to give evidence in court on oath if required. None of these criteria were satisfied in the present case.

The law relating to the reception of fresh evidence in Papua New Guinea was laid down by the Court in 1977 in The Government of Papua New Guinea and Davis v. BarkerSC184.html#_edn39" title="">[xxxix]¹ where Prentice D.C.J. (as he then was) said:

“In pursuance of the need to strike a proper balance between the interest of the State in seeing that there be finality in litigation, and that of the subject to obtain justice despite procedural irregularity or laxity on his part in the pursuit of the same, rules governing the reception of new evidence on appeal have long been formulated in courts which operate along the lines of the Common Law.”

His Honour then proceeded to expressly set out and approve for Papua New Guinea the conditions which justify the reception of new evidence or a fresh trial (being the rules “adumbrated” by Lord Denning in Ladd v. MarshallSC184.html#_edn40" title="">[xl]²). Those conditions are as follows:

“first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible”.

Lest it be considered that the Supreme Court was merely re-iterating the words of another court in another land, without regard to the requirements of Papua New Guinea, it must be emphasised that the judgment proceeds in the following terms:

“The Court was of the opinion that this formulation is not inconsistent with a Constitutional Law, is neither inapplicable nor inappropriate to the circumstances of Papua New Guinea at the present time, nor inconsistent with custom. Nor was it suggested that an alternative underlying law to cover such matters should be sought.”

Despite the clarity of the formulation of these rules in The Government of Papua New Guinea and Davis v. BarkerSC184.html#_edn41" title="">[xli]³, counsel for the present appellant has argued at some length that they should not apply. As we understand his argument it is to the effect that an accused who has upon his trial exercised his constitutional right to remain silent should nevertheless be entitled to give evidence on an appeal or upon any retrial. Put another way, if the exercise of the constitutional right of silence results in a conviction, the accused person should not be prejudiced thereby and should be permitted to exercise another constitutional right, namely the right to testify on his own behalf, at a subsequent re-hearing. It was submitted that the “finality of litigation” principle as espoused in Barker’s CaseSC184.html#_edn42" title="">[xlii]⁴ had no place in Papua New Guinea, but counsel was unable to tell us how the circumstances of the country have changed since that decision of the Court in 1977 nor what it was about the circumstances of the country which rendered the principle inappropriate.

For those reasons we decided that the appellant should not be permitted to give oral evidence before us, nor should he be permitted to call the Principal Electoral Officer. However we were concerned about the evidence which might be given by the man Martin Kaua Lumis. The fact that this man had been charged with burglary of the Popondetta Electoral Office on the night in question was well known to counsel before the trial of the appellant. The obvious course that should have been taken by counsel was to apply to the trial judge for an adjournment until the man Martin Kaua Lumis had been dealt with. We have no doubt that the trial judge would have adjourned the matter for this purpose, particularly as Lumis was to be dealt with in the same sittings as the appellant. Counsel was well aware of this. The failure to ask for the adjournment has been a very expensive mistake.

What the appellant sought to suggest by calling Lumis before us was that amongst the money stolen by Lumis in the burglary was the very K338.25 in cash which it is alleged was stolen by the appellant. As Lumis had pleaded guilty to and been convicted of stealing a lesser sum of K98.50 the difficulty arose of whether Lumis was likely to incriminate himself if he gave evidence along the lines the appellant anticipated. In resolving this difficulty we were greatly assisted by Mr. Wilson of the Public Solicitor’s Office who tendered advice to the man Lumis and also to Mr. Roddenby who appeared for the State and who very properly gave an undertaking that the man Lumis would not be further prosecuted in respect of any burglary of the premises on the night in question. In this very exceptional set of circumstances we permitted the witness to be called.

The calling of the man Lumis to give evidence turned out to be a very damp squib indeed. He said that he had been convicted of breaking and entering and stealing money from the electoral office in Popondetta on or about 29th February, 1980 and that he had in fact committed such an offence. He took the money from a box in the office. He opened the box with a key which was on the floor. The money was in three bags. Two were full and the other was half full. He took the money in the bags to his house. He was arrested in his house later the same night. He did not count the money. It was not in notes but wholly in coins, in 20 toea pieces and lesser denominations. The police took all the money. He spent K4.00. He did not give any of it to relatives or friends. He did not agree that the police told him that they had counted the money and that it amounted to K98.50.

Lumis adds nothing to the evidence which was available to the trial judge. Constable Arama gave evidence in the trial that Lumis had been charged with the burglary and His Honour refers to that evidence in his judgment. There is no evidence before us that what was taken by Lumis was greater than the K98.50 for which he was charged. There was no suggestion in cross-examination of the police in the court below and no submission before us that they had recovered more than K98.50 and pocketed the difference.

The evidence given by Lumis in this appeal therefore cannot be considered as being in that category where it would if given in a subsequent trial probably have an important influence on the result of the case. It can therefore afford no justification for a new trial and need not be further considered by us in the determination of this appeal.

Although there were a number of further grounds in the notice of appeal and the application for leave to appeal, the only one of potential substance was that which was added by leave at the hearing, namely that the verdict was unsafe and unsatisfactory and could not be supported. As indicated above the case against the accused was a circumstantial one, but His Honour expressly alluded to this in his judgment, indicating thus his awareness of the need for care before convicting in a case of circumstantial evidence. The appellant in his record of interview did not confess to the offence and in fact protested his innocence. His Honour’s view however was that what the appellant said in the record of interview, was so inadequate that it strengthened the case against him. His Honour set out precisely the inconsistencies and other unconvincing aspects of what the appellant had said to the police. It is unnecessary for us to refer to them in detail. Suffice to say that it was open to His Honour to find such inconsistencies and that we would not have found the account of the accused a convincing one. His Honour summarised these aspects of the evidence as follows and we would agree with him.

“In summary the accused was given the money to distribute. He took it to Afore when he gave out K200. He brought it back home. He gave some to his girl friend. In the meantime there had been a break and enter of his office. He is questioned. He does not say money is missing. Then the question of K1,500 arises. He says it must have gone in the break and enter. This is clearly not true. Then after about 30 to 50 minutes he admits to having it at his home. The police find K941.75. When asked about the balance (and it is an odd amount) he how says it was left in the patrol box before going to Afore. The patrol box is found. It has not been tampered with.

The accused was hoist with his own petard. He began by saying he had to keep the money at home for reasons of security and away from the office, but then when it could not be all located he had to say that he had left it at the office. None of this was convincing. I look at that evidence together with his admission of giving K10 to his girlfriend.”

Counsel for the appellant addressed us with some force on the view taken by the learned trial judge of the appellant’s election not to give evidence. It was put that his Honour failed to recognise the appellant’s constitutional right to silence and drew an inference of guilt from the appellant so exercising that right. The relevant part of the judgment is as follows:

“In my view there are inferences which can be drawn by a jury by (sic) an accused’s failure to testify. But it must be treated with caution for there may be reasons apart from guilt that a man does not testify. In other jurisdictions it may be the subject of comment by the judge to the jury. In R. v. Mutch ((1973) 1 All E.R. 178) the Court of Appeal concluded that in almost every case the comment should take the form described by Lord Parker, A.C.J. in Reg. v. Bathurst ((1968) 2 Q.B. 99) that the accused “is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box.”

Of course the situation is different where I am judge and jury. In my view the failure to give evidence in certain circumstances may be looked at together with all the other evidence and certain inferences could be drawn.

A somewhat similar situation arose in The Queen v. Abia Tamule & 11 Ors. ((Unreported) judgment No. 769, Frost S.P.J. of 6th October 1973): “if the truth is not easily ascertainable by the Prosecution, but is probably well known to the defendant, then the fact that no explanation or answer is forthcoming is a consideration making the inference of guilt from the evidence for the Prosecution less unsafe than it might possibly appear.”

The quotation from the judgment does not support counsel’s submission. In our view His Honour has not fallen into error in what he said and the passage from The Queen v. Abia Tamule & 11 Ors.SC184.html#_edn43" title="">[xliii]⁵ accurately summarises the law. We would point out that this was a trial at which the appellant not only chose to refrain from giving evidence but also did not avail himself of the opportunity of making an unsworn statement.

An additional argument was that His Honour did not accede to counsel’s request that the accused sit behind him during the trial. It is true that the learned trial judge declined counsel’s request to allow the accused to be seated behind counsel during the trial but counsel was invited to renew his application if occasion arose to do so. He did not avail himself of this invitation. It has not been shown to this Court that in this instance any miscarriage of justice resulted or might reasonably have resulted therefrom.

There were other matters raised in the notice of appeal and application for leave. None of them in our view justifies interfering with the verdict of the learned trial judge. It follows that it has not been shown that the verdict was based on any wrong principle of law nor can it be said that the evidence was such as to render the verdict unsafe or unsatisfactory. The appeal and the application for leave to appeal are dismissed.

Solicitor for the appellant: C. Narokobi.

Counsel: C. Narokobi.

Solicitor for the respondent: L. Gavara-Nanu, A./Public Prosecutor.

Counsel: K. Roddenby & P. Henao.

SC184.html#_ednref39" title="">[xxxix]^{(1977) P.N.G.L.R. 386 at p. 393}

SC184.html#_ednref40" title="">[xl]^{[1954] EWCA Civ 1; (1954) 3 All E.R. 745 at p. 748}

SC184.html#_ednref41" title="">[xli]^{(1977) P.N.G.L.R. 386 at p. 393.}

SC184.html#_ednref42" title="">[xlii]^{(1977) P.N.G.L.R. 386 at p. 393.}

SC184.html#_ednref43" title="">[xliii]^{(Unreported) Judgment N.769 6th October, 1973. Per Frost S.P.J.}