Davinga v The State [1995] PGSC 11; [1995] PNGLR 263 (1 November 1995)

PNG Law Reports 1995

[1995] PNGLR 263 - Epeli Davinga v The State 

[1995] PNGLR 263

SC491

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

EPELI DAVINGA

V

THE STATE

Kokopo

Woods Andrew Sevua JJ

3 October 1995

1 November 1995

CRIMINAL LAW - Practice and procedure - Plea of not guilty - Use of witness statements - Tendering of - Effect of a notice of alibi - Putting State to proof of charge.

Facts

The appellant was convicted of wilful murder and sentenced to 20 years imprisonment by the National Court. At the trial, the appellant gave notice of alibi and the trial judge directed therefore that the balance of the State’s evidence should be tendered in the form of “witnesses’ statements” since the accused has raised the defence of alibi which means that he was not there at the scene of the crime. “The accused can not have it both ways... He cannot say ‘I was not there’ and at the same time seek to challenge the State’s witnesses.”

Held

N1>1.       That in the circumstances of the case, the appellant was convicted without a proper trial hence a mistrial. Conviction quashed and matter remitted back to the National Court for a retrial.

N1>2.       The trial judge misconceived the effect of a notice of alibi. He has used the notice of alibi to, in effect, change the whole nature of the trial such that the onus has been shifted to the accused to prove his alibi. The real effect of the notice of alibi is to give advanced notice to the State of the case the accused relies upon. It does not shift the onus.

Cases Cited

Papua New Guinea cases cited

Beng v The State [1977] PNGLR 115.

Bimagwe v The State [1976] PNGLR 382.

Jaminan v The State [1983] PNGLR 318.

Counsel

E Batari, for the appellant.

C Manek, for the respondent.

1 November 1995

WOODS ANDREW SEVUA JJ: The appellant was convicted of wilful murder by the National Court on 6 December 1993 and was sentenced to 20 years imprisonment. He is appealing against conviction on the grounds that there was a substantial miscarriage of Justice in the manner in which the trial was conducted. The trial Judge received all the prosecution evidence by way of witnessess statements and when the trial Judge misdirected himself on a question of law whe he held that the appellant could not test the evidence of the State witnesses because he had given a notice of alibi. We were satisfied at the hearing of the appeal following a perusal of the appeal book and the transcript that there had been a mistrial and we upheld the appeal and ordered that the matter had to go back to the National Court for a retrial. We indicated that we would give the ruling immediately but would publish our reasons in due course. We now publish the reasons.

When the trial commenced on 6 December 1993, the appellant pleaded not guilty. The State then commenced its case and initially it tendered some uncontroverted evidence by way of statements about which there may not have been any dispute. This tendering of evidence by consent is provided for in Criminal Code (Ch 262) s 589: “Admission. An accused person may admit in the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence.” Then when the State Prosecutor commenced to call the State’s first witness the trial Judge indicated as follows: (see appeal book at page 15.)

“Before Mr Sios for the State called his first witness I pointed out that because the accused has raised the defence of alibi which means that he was not there at the scene of the crime and committed the crime, I cannot see why the rest of the evidence for the State has not been tendered by consent. The accused cannot have it both ways in my view. He cannot say “I was not there” and at the same time seek to challenge the State’s witnesses. It is the accused who should call his witnesses to show that he was in fact not there and did not commit the crime alleged by the State. The Court will then consider all the evidence and make a decision.”

Following that statement the Prosecutor tendered the balance of the evidence of the State by way of witnesses’ statements and closed the State case.

It is clear from the statement of the trial judge that he has misconceived the effect of a notice of alibi. He has used the notice of alibi to in effect change the whole nature of the trial such that the onus has been shifted to the accused to prove his alibi. The real effect of the notice of alibi is to give advance notice to the State of the case the accused relies upon. It does not shift the onus. As was said by Pratt, J in Jaminan v The State [1983] PNGLR 318 at 323 when discussing the effect of the raising of an alibi, “At the end of the day the position is always namely: has the prosecution proved its case beyond reasonable doubt?” It is still incumbent upon the State to prove every fact and circumstance and it is still open to the accused to challenge the evidence as presented by the State. By ruling the way he did the trial Judge was forcing the counsel for the accused to accept all the State evidence of identification without any opportunity to challenge the witnesses who presented it. This was overlooking the effect of a plea of not guilty as enunciated by Frost C.J. on Nai’u Bimagwe v The State [1976] PNGLR 382:

“the effect of a plea of not guilty has under the Code the same breadth of meaning as at common law, which is to render it incumbent upon the prosecution to prove every fact and circumstance constituting the offence charged. This rule is enshrined in its full force in the Constitution which preserves a fundamental right that a person shall be presumed innocent until proven guilty.”

There is no doubt that it is open to both prosecution and defence to agree on the admission of certain facts, and this is often done where there is no doubt or no challenge to the facts. And with the costs of justice and the pressure to make courts and trials more efficient such agreements on the admission of uncontroverted facts should be part of any efficient court system. Thus records of interview which contain no admissions are usually tendered by consent, and often it is incumbent on the prosecution to tender such statements where they show consistency in an accused’s denials. And often in financial fraud or misappropriation cases documents relating to the movement or use of money are tendered by consent as there usually cannot be any dispute about what they show on their face, and it is then a matter of the interpretation of the actions by the relevant persons that become critical in their use of such monies or otherwise. Also medical reports where there is no challenge or doubts as to the condition of the patient are tendered by consent or by the specific provision in the Evidence Act. And when such matters are tendered it is done by consent as both parties agree that they are relevant and it is then other evidence from the respective parties which affect the issue of guilt or innocence. Of course a trial Judge should always consider carefully whether there can be no prejudice to a fair trial by the admission of such evidence. However, in this case the trial Judge has gone further and appeared to overbear the counsel by his misunderstanding of the nature of the notice of alibi and has cut across the appellant’s right to challenge the State case.

Whilst it is clear that having asserted that he is no where near the scene of the offence there will obviously be matters that an accused would not be aware of and this would limit the scope of questions that could be put in cross-examination, it is still open and necessary for the accused or his counsel to challenge matters affirmed to in the evidence of the State witnesses. Thus it may be open to cross-examine or challenge the identification of the accused by the state witnesses, it may be open for example to question the circumstances of the identification, according to the principles of identification exemplified in the case, John Beng v The State [1977] PNGLR 115. The trial Judge’s ruling here has meant the defence could not challenge the identification of the accused according to the well established principles of identification.

The trial Judge’s ruling meant that the prosecution case was not presented according to the well established principles and procedures for the conduct of a criminal trial. We find that in the circumstances the appellant was convicted without a proper trial and there has therefore been a mistrial. We therefore ordered that the conviction be quashed and the matter be remitted back to the National Court for a retrial.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.