Geta v The State [1988] PGSC 14; [1988-89] PNGLR 153 (28 April 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 153 - Biwa Geta v The State 

[1988-89] PNGLR 153

SC367

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BIWA GETA

V

THE STATE

Waigani

Kidu CJ Bredmeyer Los JJ

2 December 1988

28 April 1989

CRIMINAL LAW - Evidence - Failure of accused to testify - Trial judge’s observations on - Whether error of law.

CRIMINAL LAW - Evidence - Identification - Dangers inherent in - Relevant considerations - Whether trial judge required to enunciate - Whether relevantly critical appraisal of evidence sufficient.

CRIMINAL LAW - Appeal - Errors of law - Legal principles behind evidentiary findings - Whether trial judge required to enunciate - Whether relevantly critical appraisal of evidence sufficient.

In a judgment following the trial of an accused for armed robbery, the trial judge stated:

“I am satisfied on the evidence of identification of James Seken. His evidence was very good and clear, he was sure of his identification of the face, he said he had seen the face around before. This must help to confirm his identification of the accused Biwa Geta. I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there. The only evidence I have got is the State’s evidence of the accused present at the holdup and later on that day one of the witnesses also identified him as one of the people in the garden further out of Lae. I have no other explanation before me, no evidence from the accused that he was not there, so the only explanation can be that the accused was there and did commit the robbery, did commit the acts involving the holdup of the Air Niugini shed with the shotgun.”

On appeal against conviction,

Held

(dismissing the appeal under the proviso to s 23(2) of the Supreme Court Act (Ch No 37) on the ground of no miscarriage of justice),

N1>(1)      The trial judge wrongly commented on, or took into account, the fact that the accused did not give evidence.

Paulus Pawa v The State [1981] PNGLR 498, applied.

R v Sparrow (1973) 57 Cr App R 352 at 357, considered.

N1>(2)      (Bredmeyer J contra) Whilst it may be helpful for a trial judge, in his reasons for judgment to advert to the legal principles involved in the dangers inherent in, for example, identification evidence, failure to do so will not of itself constitute an error of law if a critical examination of the evidence is given which demonstrates the adherence to those principles.

N1>(3)      (Bredmeyer J contra) In the circumstances, the reasons for judgment clearly demonstrated that the trial judge, bearing in mind the dangers inherent in identification evidence, had accepted the evidence of identification.

John Beng v The State [1977] PNGLR 115, considered.

(Per Bredmeyer J) A trial judge must, in his reasons for judgment, before making findings of fact advert to all relevant principles of law on matters which in jury trials would be included in the judge’s summing up to the jury.

Discussions of matters relevant to law of identification.

McCallum v Buibui [1975] PNGLR 439 at 447; Townsend v Oika [1981] PNGLR 12 and The State v Andrew Tovue [1981] PNGLR 8 at 10, considered.

Cases Cited

Aron Narampan v The State (Supreme Court, SCR 356, 4 November 1988, unreported).

Callis v Gunn [1964] QB 495; [1963] 3 WLR 931.

Chiu Nang Hong v Public Prosecutor (1964) 1 WLR 1279.

John Beng v The State [1977] PNGLR 115.

McCallum v Buibui [1975] PNGLR 439.

Paulus Pawa v The State [1981] PNGLR 498.

R v Bathurst [1968] 2 WLR 1092; [1968] 1 All ER 1175; (1968) 52 Cr App R 251.

R v Murphy [1965] NI 138.

R v Payne [1963] 1 WLR 637; [1963] 1 All ER 848; (1963) 47 Cr App R 122.

R v Sparrow [1973] 1 WLR 488; [1973] 2 All ER 129; (1973) 57 Cr App R 352.

R v Turnbull and Others [1976] 3 All ER 549; (1976) 63 Cr App R 132.

State, The v Andrew Tovue [1981] PNGLR 8.

Townsend v Oika [1981] PNGLR 12.

Appeal

This was an appeal against conviction for armed robbery.

Counsel

G Langtry, for the appellant.

S Soi, for the respondent.

Cur adv vult

28 April 1989

KIDU CJ: In this appeal the appellant asks that his conviction for armed robbery be quashed as being unsafe and unsatisfactory for the following reasons:

N2>(1)      The learned trial judge failed to warn himself (or direct his mind) to the dangers of convicting where the prosecution evidence relied wholly or substantially on the correctness of one or more eye-witnesses’ testimony: John Beng v The State [1977] PNGLR 115.

N2>(2)      The learned trial judge should have excluded the evidence of the identification parade, in the exercise of his discretion as it was grossly unfair to the appellant: John Beng.

N2>(3)      The evidence of the trip to Finschhafen should not have been admitted as the prejudicial effect of it outweighed its probative value. The trial judge should have exercised his discretion accordingly: Callis v Gunn [1964] 1 QB 495; R v Payne [1963] 1 All ER 848; R v Murphy [1965] NI 138.

N2>(4)      The learned trial judge should not have found the element of stealing proved beyond reasonable doubt as the finding is against the weight of the evidence, or alternatively, there was no evidence of it.

The charge against the appellant was that he with others on 24 February 1987 stole from Fred Warikar, with threats to use actual violence, K165,000 the property of Westpac Bank PNG Ltd and at the time he was armed with a dangerous weapon, namely a shotgun and was in company with others.

There is unchallenged evidence that about 12.45 pm on 24 February 1987 two men, one armed with a shotgun, entered the Air Niugini cargo shed at Lae Airport. Senior Cargo Officer, Fred Warikar, gave the following unchallenged account:

“I was at the counter with one of my colleagues, Somore Maro. He was standing on the left and at the back of us too was a forklift driver and James Seken was sitting in the office just behind from us. At the time two men came in front of the counter and one was with a gun pointing to me and the other had no gun. At that moment he told us to move two mailbags to get mailbags and because he pointed gun to my junior clerk and he moved to where company bags were and then he pointed gun to me and said we have to get blue bags, Post Office mailbags and I went with the other man, a short fellow towards the Post Office mailbags. At the time he was concentrating on getting two men outside the customs office so I started running and getting to Umane and forklift driver to run so we ran out to the tarmac.”

He went on to say that the gun was a shotgun and the man holding it was tall and masked but he did not recognise him. Also he did not see the two men take anything from the shed.

From the evidence given by this witness it is abundantly clear that the two men were after blue Post Office mailbags. But there is no evidence that these two men did get these blue bags and there is no direct evidence of their carrying these bags to the vehicle in which they drove off. I shall return to this later after dealing with the identification issue.

IDENTIFICATION

There is no doubt that the trial judge based his finding that the appellant was the man with the shotgun who entered the Air Niugini shed on the testimony of James Seken. His Honour said the following in his judgment:

“One of the employees of Air Niugini, James Seken, was in an office close to and saw the holdup and ran outside to try and get some help. In the process he then tried to stop the holdup people escaping in a car and he apparently saw the face of the accused which had become uncovered at the time.

...

I am satisfied on the evidence of identification of James Seken. His evidence was very good and clear, he was sure of his identification of the face, he said he had seen the face around before. This must help to confirm his identification of the accused Biwa Geta. I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there.”

Mr Langtry submitted that as the learned trial judge “failed to warn himself (or direct his mind) to the dangers of convicting an accused where the prosecution evidence relied wholly or substantially on the correctness of one or more eye-witnesses’ testimony ...”, he erred in law. The case of John Beng v The State [1977] PNGLR 115 was cited to support this submission. The principle enunciated in John Beng is well established and need not be repeated here.

It is apparent from the learned trial judge’s judgment that he was well aware of the dangers mentioned in John Beng’s case. He said he was satisfied with James Seken’s identification of the accused. He stated that the evidence was “very good and clear” and the witness was “sure of the identification of the face” which he had seen before. This clearly demonstrates that the trial judge, bearing in mind the dangers of identification evidence, accepted the evidence of James Seken. So I cannot see where there is any error made by the learned trial judge.

It would be helpful for a court to actually advert to the dangers inherent in identification evidence; but I do not think that it is fatal to a conviction if this does not occur as long as the evidence is examined critically before being accepted as was the case here.

With respect to the identification parade held on 24 October 1987, it is very evident from the judgment that no reliance was placed on this. The trial judge accepted the identification evidence at the scene of the offence.

The concern I have with respect to the identification evidence is what the learned trial judge said in his judgment:

“I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there. The only evidence I have got is the State’s evidence of the accused present at the holdup and later on one of the witnesses also identified him as one of the people in the garden further out of Lae. I have no other explanation before me, no evidence from the accused that he was not there, so the only explanation can be that he was there and did commit the robbery ...”

It is explicit from his Honour’s judgment that he equated the accused’s silence with guilt and this is clearly contrary to law. This Court in Paulus Pawa v The State [1981] PNGLR 498, by majority decision (Kearney Dep CJ and Andrew J) laid down the following principles with respect to the failure of an accused person to give evidence (at 504):

N2>“1.      The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify;

N2>2.       Failure to testify may, however, tell against an accused in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

N2>3.       Failure to testify only becomes a relevant consideration when the [State] has established a prima facie case;

N2>4.       The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a)      whether the truth is not easily ascertainable by the [State] but probably well known to the accused;

(b)      whether the evidence implicating the accused is direct or circumstantial;

(c)      whether the accused is legally represented;

(d)      whether the accused has before trial given an explanation which the [State] has adduced in evidence.”

The learned trial judge very clearly breached the first principle. All that the trial judge should have said was that the evidence of the State by itself was believed — that is, the appellant took part in the armed robbery. It was wrong for him to say that, as the accused had not given evidence, “the only explanation was that he was there and did commit the robbery”. This taints the identification evidence of James Seken which he accepted because he used the appellant’s silence to support this evidence.

With respect to whether the element of stealing in the offence of armed robbery was proved, there are various short-comings in the evidence adduced by the State. But before going into those, I must point out that the learned trial judge erred in his judgment again when he said:

“And of course the accused does not deny that he took these bags and that they contained money.”

The appellant had pleaded “Not Guilty”, thereby denying that he stole the mailbags or the money. He denied committing the offence.

The two eye-witnesses who gave evidence did not see the two holdup men take any blue mailbags or cartons from the Air Niugini shed. It is true that the two masked men asked for blue Post Office mailbags but no evidence was adduced by the State as to what was in those bags. For all we know they contained letters and nothing else. So if they were after those blue bags that does not indicate they took the money which was in three beer cartons wrapped in brown paper. There is no evidence these cartons were in blue Post Office mailbags.

When the two masked men ran from the Air Niugini shed to the waiting vehicle there is no evidence that they carried blue Post Office mailbags. In fact, the only thing they had was the shotgun carried by the dark-skinned man.

About an hour after the incident at the shed, at Butibum, some kilometres from Lae Airport, the witness Giam Labi claimed he saw the appellant and another man in the bush and the appellant carried a beer carton whilst his friend carried a gun. Her evidence is as follows:

“... I was in the garden. I heard a car come into the bush ... I saw two men jump out the car and when they came out I saw them and I ran back to my father. Then I told my father and he came back and spoke to those men. That’s all.”

She was standing on the road when she saw the vehicle in the bush. One of the men was “dark-skinned and a bit tall and he has short hair”. The other man was “short, light-skinned and dark hair is a bit long”. This light-skinned man carried a gun and the dark-skinned man carried an SP beer carton. Of course, as there was no evidence that the robbers took any cartons from the Air Niugini shed at Lae Airport this evidence is of no assistance. The two men could have gone to the bush to drink their carton of SP beer.

Giam’s identification should have been carefully considered by the learned trial judge as the conditions and circumstances under which it was made were not the best. She stood on the road, looked through trees and saw two men. She then ran to where her father was and it was he who went and talked to the men before the vehicle driven by Soisoi, another State witness, arrived and the two men left in his vehicle. There is no evidence that the two men got into Soisoi’s vehicle with the beer carton. Soisoi’s evidence also lacks this bit of information. She saw the two men 10 metres away in the bush through trees. She mentioned that when they got into Soisoi’s vehicle they had the gun — there was no mention of the SP beer carton.

Soisoi Makim did not mention that one of the two men carried an SP beer carton. He only mentions that one of them had a gun. The evidence that in the evening some person left some money in his vehicle does not mean anything to this case. He did not know who put the money in his vehicle. So Giam Labi and Soisoi Makim gave evidence which did not support the stealing of K165,000 from Lae Airport Air Niugini shed.

The appellant was seen at 4 pm on 23 October 1987 at Lae Police Station by Inspector Elena Taumick who had gone to Lae from Port Moresby. He did not interview him then as the appellant said he was tired. It was the following day that he interviewed the appellant in English. Sergeant Tim Gedisa was present at the interview. Inspector Taumick recorded the interview. The record was not tendered by the State.

In his evidence Superintendent Taumick stated:

“I suspended record of interview on 24th and 25th he told me about the money. He gave his cousin about K10,000 so I spoke to PPC who could hire a helicopter to Finschhafen to get money from his cousin. Then on Saturday and Sunday I went to Finschhafen to get money from his cousin. I and accused and Sgt Gedisa.”

There is nothing in this testimony about what money the appellant was talking about. When they went to the village the cousin, Max Sabe, handed K2,340 to Taumick after he had talked in private with the appellant but that was not tendered in evidence. On 24 October 1988, Inspector Taumick interviewed the appellant:

“On 24 October at 9.30 I took the accused out of cell down to Provincial Police Headquarters where I talked to him regarding the armed robbery at Lae Airport on 24 February 1987.

...

I suspended record of interview on 24th and 25th he told me about money. He gave his cousin about K10,000 ...”

The cousin mentioned was Max Sabe. When Inspector Taumick, Sergeant Gedisa and the appellant went to the appellant’s village in Finschhafen, Max Sabe handed over K2,340 after he had had a private conversation with the appellant. He gave evidence for the appellant but was not believed. He said the money he handed over belonged to his company and was to help with the appellant’s defence. When Taumick was cross-examined he gave the following evidence:

N2>“Q.     Did you know where that money this accused gave to you came from?

N2>A.       His cousin said the accused gave to me and this what I give you, half I already used it.”

The appellant was present when Max Sabe said this. It is clear evidence of an admission by the appellant that he took part in the armed robbery at Lae Airport and that he and this other person stole the K165,000. The evidence is supported by Sergeant Gedisa. In cross-examination he said:

N2>“A.      Verbal conversation between 3 of us Biwa Geta had admitted being actually involved in armed holdup on 24 February 1987.”

This was not challenged and fatal to the appellant. So by his own admission he was properly convicted.

I would dismiss the appeal.

BREDMEYER J: This is an appeal against a conviction for armed robbery. The appellant also appealed against his sentence but then abandoned that in argument. One of the grounds of appeal is that the learned trial judge failed to warn himself or direct his mind to the dangers of convicting on identification evidence. In a judge-and-jury jurisdiction, the judge is required in his summing up to the jury to address the jury, when appropriate, on a number of legal matters. These are set out in Archbold, Criminal Pleading Evidence and Practice, 41st ed, pars 4-423 to 4-436, and they include the following topics: burden of proof, corroboration, issue of identification, evidential value of defendant’s statement, previous inconsistent statement, defendant’s character, comment on the merits and on the defendant’s failure to testify, etc. If the judge fails to address the jury on these matters then the verdict is likely to be overturned on appeal unless the appellate court can apply the proviso which exists in most appellate statutes that:

“notwithstanding that the appellate court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred”.

Thus, for example, where the offence is a sexual one it is necessary for the judge to direct the jury on the law of corroboration and if he fails to do so a verdict of guilty returned by the jury will be quashed on appeal.

I believe the situation is exactly the same in our jurisdiction where a judge sits alone. It is still necessary for him to direct himself or remind himself of the relevant law and, if he fails to do so, his conviction will be overturned on appeal unless the Supreme Court considers it appropriate to apply the proviso which is found in s 23(2) of the Supreme Court Act (Ch No 37). The situation is the same in other jurisdictions which do not have juries and also in relation to magistrates who sit alone. An illustration of this is found in Chiu Nang Hong v Public Prosecutor (1964) 1 WLR 1279, which was a Privy Council decision on appeal from Malaysia. In that case the trial judge sat without a jury on a rape case. The only issue was the lack of consent and counsel for the accused in his final address dwelt repeatedly on the need for corroboration. The judge referred to the law on corroboration in these terms (at 1284): “I could not but come to the conclusion that she (the complainant) was speaking the truth and that in all material circumstances her evidence was corroborated by the facts.” The Privy Council (at 1284) considered that, because of defence counsel’s address, the judge would clearly have had the matter of corroboration well in mind and his judgment showed that he examined all the surrounding circumstances with great care but that the circumstances did not afford corroboration of the complainant’s allegation of no consent and the Privy Council quashed the conviction. At 1285, the Privy Council said:

“Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant’s evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordship’s view make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge’s mind upon the matter should be clearly revealed.”

That principle has been widely followed in our courts. In McCallum v Buibui [1975] PNGLR 439 at 447, Frost CJ said that magistrates should follow that practice. In that case the magistrate decided to act upon the girl’s evidence which he found to be true but without making any reference to the need for caution in so doing in the absence of corroboration, and he thereby fell precisely into the error which the Privy Council said should be avoided. The Supreme Court, in Townsend v Oika [1981] PNGLR 12, said the same thing. That was a case on appeal from a magistrate who had convicted the appellant of common assault but the evidence indicated that that assault was of a sexual nature. The headnote reads as follows:

“Where the rules relating to corroboration need to be applied account should be taken of the presence or absence of corroboration and the failure to note this in the judgment is fatal to conviction unless the appeal court can be satisfied that no miscarriage of justice has occurred.

McCallum v Buibui [1975] PNGLR 439 applied.

As a matter of practice a magistrate in all cases having a sexual element, should state and record, when the evidence and the addresses are concluded, that he understands the dangers of convicting upon the uncorroborated evidence of the woman or girl concerned and should then proceed to consider what the verdict should be with those dangers in mind. If he finds that there is corroboration, he should, when giving judgment, state and record what constitutes such corroboration, and if there is no corroboration and he convicts, he should state what it was that, in the absence of corroboration, in the particular case, led him to the conclusion that it was safe to convict.”

The position is the same for a judge in Papua New Guinea as for a magistrate. The judge must advert to the relevant law of corroboration before making his findings of fact. A published example of a judge doing just that is The State v Andrew Tovue [1981] PNGLR 8 at 10 and the Supreme Court recently affirmed the law on that subject in Aron Narampan v The State (Supreme Court, SCR 356, 4 November 1988, unreported). Those local judgments I have cited all deal with the question of corroboration but the position is exactly the same with any other topic that should be included in the judge’s summing up to a jury. Thus the position is exactly the same on the topic of identification. The judge must, or if it is a District Court case, the magistrate must, remind himself of the law on identification. That law is set out in John Beng v The State [1977] PNGLR 115 which in turn followed the English case of R v Turnbull and Others [1976] 3 All ER 549; (1976) 63 Cr App R 132 (a five-judge bench of the Court of Appeal). The judge, or magistrate, must say:

“In this case where the State relies on the correctness of identification evidence which the defence alleges to be mistaken, I must warn myself of a special need for caution before convicting on reliance on that identification evidence. I note in the terms of John Beng v The State [1977] PNGLR 115 or R v Turnbull [1976] 3 All ER 549, the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could be mistaken.

I remind myself of the need to examine closely the circumstances of the identification made by each witness. For example, how long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before, and if so, how often? If only occasionally, had he any special reason for remembering the accused? How long had elapsed between the original identification and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, I remind myself that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and strength of the identification evidence is enhanced. When the quality of identifying evidence is poor — that is, a fleeting glance or a longer observation made in difficult conditions — the evidence is of little or no value.”

The judge should remind himself in those terms, or in words to that effect, and should then go on to discuss the identification evidence in accordance with those principles.

In this case the trial judge did discuss the evidence of identification of the accused in the first two paragraphs of his judgment but he did not advert to the legal principles, to the dangers of accepting identification evidence as required by Beng or Turnbull. I consider that he should have done so and this is so whether counsel drew his attention to the legal principles or not, and I therefore consider that he erred in law.

FAILURE OF THE ACCUSED TO TESTIFY

The second ground of appeal argued is that the learned trial judge wrongly commented on, or took into account, the fact that the accused did not give evidence. The passage complained of is as follows:

“I am satisfied on the evidence of identification of James Seken. His evidence was very good and clear, he was sure of his identification of the face, he said he had seen the face around before. This must help to confirm his identification of the accused Biwa Geta. I see no reason not to accept the evidence of identification presented by the State because there is no evidence from the accused that he was not there. The only evidence I have got is the State’s evidence of the accused present at the holdup and later on that day one of the witnesses also identified him as one of the people in the garden further out of Lae. I have no other explanation before me, no evidence from the accused that he was not there, so the only explanation can be that the accused was there and did commit the robbery, did commit the acts involving the holdup of the Air Niugini shed with the shotgun.” (My emphasis.)

The law in England, in the context of a judge-and-jury trial, is that a judge may comment in a limited way on the defendant’s failure to testify. That matter is dealt with in detail in Archbold, Criminal Pleading Evidence and Practice, 41st ed, par 4-431. The leading English case is R v Sparrow (1973) 57 Cr App R 352 where (at 363) the Court of Appeal quoted with approval the words of Lord Parker CJ in R v Bathurst (1968) 52 Cr App R 251 at 257, as follows:

“As is well known, the accepted form of comment is to inform the jury that, of course, the defendant 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.”

The Court of Appeal, in Sparrow, went on to say (at 363-364):

“In many cases a direction in some such terms as these will be all that is required; but we are sure that Lord Parker CJ never intended his words of guidance to be regarded as a judicial directive to be recited to juries in every case in which an accused elects not to give evidence. What is said must depend upon the facts of each case and in some cases the interests of justice call for a stronger comment. The trial judge, who has the feel of the case, is the person who must exercise his discretion in this matter to ensure that a trial is fair. A discretion is not to be fettered by laying down rules and regulations for its exercise (see Selvey v Director of Public Prosecutions (1968) 52 Cr App R 443 at 474). What, however, is of the greatest importance in Lord Parker CJ’s advice to judges is his reference to the need to avoid telling juries that absence from the witness box is to be equated with guilt.”

Consistent with what I have said about a judge sitting alone directing himself or reminding himself of the law on relevant topics such as corroboration and identification evidence, it is necessary for the judge also to remind himself of this direction if he is going to say anything about the failure of the accused to give evidence. Again, he must do so whether counsel has addressed him on the issue or not. Having done so the judge, as the decider of facts, may, in another part of his judgment, give as one of his reasons for conviction the failure of the accused to testify. I am conscious that I am saying something new here but it is very hard in the published cases which are easily accessible to us to find anything on this topic. The reason is that those cases mainly come from England and Australia where they have judge-and-jury trials. I have been unable to find anything relevant from jurisdictions such as Singapore and Malaysia where they have judge-only trials. Even in England and Australia, when a judge has correctly addressed the jury on the accused’s failure to testify, that is, addressed them in the terms of Sparrow’s case which I have just quoted, it is permissible in the secrecy of the jury room for the jury to say, “We count against the accused the fact that he did not go into the witness box to give evidence”. In the same way it is improper for a judge to comment adversely on the failure of the defendant to disclose his defence to a policeman after being cautioned, or in the magistrate’s court after being given the statutory caution which comes at the end of the prosecution case in a committal, but I consider that, once a judge has reminded himself of that law, when he decides facts he can say, “One of the reasons I find this defendant guilty is that when called upon by the police to give an explanation, he failed to do so”. I consider that a judge is entitled to use his common sense, as a jury does, when deciding the facts. As I have said, authority on this point is unlikely to be found in England yet some mention of the practices of juries is made in Sparrow, at 359:

“In our experience of trials, juries seldom acquit persons who do not give evidence when there is a clear case for them to answer and they do not answer it. Lord Goddard CJ recognised this, as one would have expected him to do, in his judgment in Jackson (1953) 37 Cr App R 43 at 50: ‘Whatever may have been the position very soon after the Criminal Evidence Act 1898 came into operation ... everybody knows that absence from the witness-box requires a very considerable amount of explanation’.

The reason lies in common sense. An innocent who is charged with a crime, or any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened. Juries know this; and they must often be perplexed as to why they should be told by judges, as they often have been since the passing of the Criminal Evidence Act 1898, that when considering their verdict they should not take into account the fact that the accused has said not a word in his own defence even though the case against him is a strong one.”

To summarise what I have been saying, when an accused fails to give evidence and the judge wishes to comment about that, he may do so in two ways. First, he must remind himself of the law, as per Sparrow, that the accused is not bound to give evidence, he is entitled to sit back and see if the prosecution has proved its case and that the judge must not assume the accused is guilty because he has not gone into the witness box. Secondly, as the decider of facts, he may say that the prosecution case is strong and points to the guilt of the accused and that the accused has chosen not to lead any evidence which might create a reasonable doubt in my mind. Alternatively, adopting the words used by Kidu CJ in this judgment, in turn quoting from Paulus Pawa v The State [1981] PNGLR 498, the accused’s failure to testify has strengthened the State’s case by leaving it uncontradicted or unexplained on vital matters.

In this case, I consider that the learned trial judge erred in law in commenting that there was no evidence from the accused, which I have cited in the passage above, in that he did not address himself to the law in the terms of Sparrow. If he had reminded himself of the law in the terms of Sparrow, then his comments on the facts would not have been improper although I think the more cautious expression of words I have used in the preceding paragraph is preferable.

I have come to the view then that the learned trial judge made two errors of law but I agree with the analysis of the facts presented by the Chief Justice, and in particular the crucial importance of the admission evidence, and I think it proper to apply the proviso to s 23(2) of the Supreme Court Act (Ch No 37). I consider that notwithstanding the two errors of law exposed by this appeal, no miscarriage of justice has actually occurred and I would dismiss the appeal.

LOS J: I have read the draft judgment by the Chief Justice. With respect, I agree entirely with his Honour’s decision and the reason.

Appeal dismissed

Lawyers for the appellant: Kirriwom & Co.

Lawyer for the State: Public Prosecutor.