|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
S.C. APPEAL NO 80 OF 2004
BETWEEN
FRED BUKOYA
Appellant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
Waigani: Sevua, Mogish & Lay JJ
2005: 1 September
2007: 17 October
CRIMINAL LAW- Criminal Code s589 - Admission of depositions by consent -Murder trial- - prosecution case by depositions only - Prosecution witnesses not tested by cross examination -Whether verdict safe - Considerations for admitting depositions by consent.
CRIMINAL LAW - Silence at the Police Station, whether adverse inference may be drawn.
Cases Cited
Papua New Guinea Cases
Nai'u Limagwe v The State [1976] PNGLR 382
SCR No.1A of 1981; Re Motor Traffic Act [1982] PNGLR 122
Awoda v The State [1984] 165
The State v Misari Warun [1988-89] PNGLR 327
Sampson Pulube v Herepe Wapia [1995] PNGLR 472
The State v Hekavo [1991] PNGLR 394
Paulus Pawa v The State [1981] PNGLR 498
State v Raima [1993] PNGLR 230
Epeli Davinga v State [1995] PNGLR 263
The State v John Billy White [1996] PNGLR 262
Charles Bougapa Ombusu v The State [1997] PNGLR 699
Oscar Tugein v Michael Gotaha[1984] PNGLR 137
State v Kiki Hapea [1985] PNGLR 6
The State v Kai Wabu [1994] PNGLR 498
State v Goli Golu [1979] PNGLR 11
State v Win Kwainfelin [1986] PNGLR 106
State v Kiki Hapea [1985] PNGLR 6
State v Mana Turi [1986] PNGLR 221
John Jaminen v The The State [1983] PNGLR 381
Overseas Cases
Teper v R [1952] 2 All ER 447
R v Gibson [1887] UKLawRpKQB 27; (1887) 18 QB D. 537
R v Ellis [1910] 746
Stirland v DPP [1944] AC 315
R v.Lee Kun Vie Ah (1915) 11 Cr App R 293;
Lewis v R (1971) 55 Cr. App R 386;
R v Henriques (1991) 93 Cr App R 237
Doyle v Ohio [1976] USSC 120; 426 US 610,
R v Naylor (1933) 1 KB 685,
R v Leckey (1944) 1 KB 80
R v Amway Corp (1989) (1) SCR 21
United States v Hale [1975] USSC 126; 422 US 171 (1975)
Griffiths v California Corp [1965] USSC 127; (1965) 380 US 609,
Chau Chi Hung v The Queen [1982] HKCA 215.
Facts
The Appellant was charged with wilful murder. The trial proceeded with the whole of the evidence for the prosecution being admitted by consent by way of un-sworn statements and several affidavits. The Appellant gave sworn evidence. The trial judge said he did not believe the accused because he had been selective in his answers to the police and because he had not prepared a sketch of the scene for the police, as he had done at the trial. The Appellant was convicted of murder and sentenced to 10 years in hard labour.
Held
(1). Permitting the State’s case to proceed solely on the tendered statements was a wrong course which tainted the whole trial. The judge should have refused to accept the statements of evidence as it was not in the best interests of justice,. The State should have been ordered to produce the witnesses to be called to give the evidence. Admitting the untested witness statements on contested and critical issues made the verdict unsafe and unsatisfactory. Appeal allowed on that ground alone.
(2). A trial based solely on admissions should be avoided;
(3). A trial judge should not, as a general rule, admit affidavits or statements by consent, in the case for the prosecution, if:
(a). The credibility of the witness is in issue;
(b). The accuracy of the witness’s evidence is in issue;
(c). The witness’s evidence conflicts with other evidence in a particular relevant to the guilt or innocence of the accused;
(d). The witness’s evidence bears on a contested fact in the issue of guilt or innocence or upon inferences of such fact to
be drawn by the Court in reaching its verdict.
Where a deposition is admitted by consent or pursuant to statute the judge should warn himself of the difficulties posed by accepting evidence from persons whose credibility cannot be tested, in particular with respect to any point where the untested deposition is in conflict with oral evidence tested by cross examination.
A judge proposing to admit a statement into evidence should satisfy himself that there is some evidence that the maker of the statement understood its contents.
There is no principle of law which requires the accused’s right not to say anything at a Police interview, to be exercised in toto or not at all.
Until the occasion arises on which the issue can be fully argued, a judge should not comment on the silence of the accused at the police station. A judge may comment on the accused’s silence which occurs after he has been formally called upon to defend himself (such as at committal proceedings), if:
1. The State has established a prima facie case;
2. The accused goes into evidence;
3. The delay in putting forward the accused 's version of events (as distinct from mere silence) is commented upon by the judge as
a factor in disbelieving the defence, and not as a factor of weight in proof of the State case.
No inference or adverse comment should be made from the alleged omission of an accused person to draw a sketch of the crime scene during a Police interview;
The interests of justice require that a new trial be conducted.
Counsel
I Molloy, for the Appellant
J. Pambel, for the Respondent
17 October, 2007
1. BY THE COURT: The Appellant was convicted of murder on the 14 July 2004, in the National Court at Wabag. On 23 September, 2004 he was sentenced to 10 years imprisonment.
2. An appeal was filed against the conviction and severity of sentence imposed. Where required, leave to appeal was granted on 18 November, 2004.
3. The Appellant was employed as a security guard at the Porgera Mine Field in Enga Province. For some time there had been problems with illegal miners in the mine field. On 23 February, 2002 at night the Appellant and other security guards were ordered to apprehend a group of illegal miners. The security guards split into two groups. One was led by the Chief Duty Officer, Pitu Lapai and the other group was led by the Appellant. The Appellant’s group was to manoeuvre the illegal miners to an area where the group led by Pitu Lapai could apprehend them.
4. The group led by the Appellant, who was armed with a loaded shotgun, met a group of illegal miners, one of whom was the deceased, Yandari Pyali. Shortly after this meeting, the Appellant discharged his shotgun two times into the air as warning shots. The Appellant then discharged the shot gun three times at the illegal miners.
5. The deceased was killed immediately when he was hit in the chest by a shotgun pellet. The Appellant admitted he was the person who fired the shot killing the deceased.
6. The indictment contained two counts of unlawful killing contrary to Section 299 of the Criminal Code. The State offered no evidence on one count in the absence of medical evidence showing the cause of death. The trial was therefore confined to the single count of wilful murder of the deceased.
7. The Appellant did not deny the shooting. His case was that the unlawful entrants were found armed, making threats, headed towards the Appellant and his group and did not disburse despite warnings. At the trial the Court was informed that the Appellant intended to raise defences of self-defence under section 269 Of the Criminal Code and aiding in self-defence under section 271 of the Criminal Code.
8. At the trial there were tendered, by consent of counsel for the accused, statements or affidavits of all of the prosecution witnesses, most of which were unsworn. The statements were of Kurai Kessy, Malyio Nisera, Abraham Nakon, Enuwa Okoko, Boo Tonny, Lyoke Mathew, Tommy Tandipa, John Nangali, Pitu Lapai, Peter Wanis, Harald Giebel, Brendon Kelleher, Ben Turea, First Constable Joseph Numbos, Senior Sergeant Jerry Somon, Seargent Maso Ae and Daisy Atua.
9. The Appellant has appealed on some 32 grounds. For present purposes it is sufficient to set out grounds 28 to 32:
28. The trial judge erred in admitting the unsworn statements of Kurai Kessy, Malyio Nisera, Abraham Nakon, Enuwa Okoko, Boo Tonny, Lyoke Mathew, Tommy Tandipa, John Nangali, Pitu Lapai, Peter Wanis, Harald Giebel, Brendon Kelleher, Ben Turea, First Constable Joseph Numbos, Senior Seargent Jerry Somon, Seargent Maso Ae and Daisy Atua
29. further or alternatively, the learned trial judge erred in failing to exercise his discretion to exclude some or all of the said statements particularly having regard to the following:
(a). there was no or no adequate reason given for not calling the witnesses to give oral evidence;
(b). there was no or no adequate explanation for the failure to produce affidavits or sworn statements;
(c). there was no or no adequate evidence concerning the circumstances in which the statements were obtained or transcribed;
(d). there was no or no adequate evidence to satisfy the court that each of the witnesses was literate or fully understood the statement he or she signed;
(e). the statements (or some of them) were contentious, prejudicial to the Appellant and/or ambiguous;
(f). the admission of the statements deprived the court of the opportunity of assessing the witnesses credibility;
(g). the reception of the statements offended the best evidence rule;
(h). some of the witnesses were likely to be hostile to the Appellant, for example,Kurai Kessy,Malyio Nisera were associates of and engaged in unlawful conduct with the deceased;
(i). the admission of the statements in lieu of oral evidence was liable to deprive the Appellant of a fair trial.
30. The trial judge erred in allowing the admission of a sketch plan (exhibit D, first appearing) without requiring the author to be called or even identified.
31. The learned trial judge erred in failing to warn himself that he should be wary of accepting prosecution evidence consisting of unsworn statements from persons whose credibility could not be tested and who had not been cross-examined.
32. The learned trial judge erred in that he failed to have any or sufficient regard to the failure of the prosecution, contrary to the rule in Browne v Dunn to put to the Appellant in cross examination substantial parts of the evidence of the prosecution witnesses which it was intended to rely upon in contradiction of the Appellants evidence.
Submissions
10. The Appellants submissions in relation to these grounds in summary are that the trial judge ought not to have received the statements
by consent because doing so deprived the accused of a fair trial, it deprived the accused of the opportunity of cross examination
of the witnesses and deprived the court of the opportunity of assessing the witnesses in the witness box. But having accepted the
statements the judge should have warned himself about the difficulties presented by evidence of a deponent who is not cross examined,
particularly in relation to particular features of the evidence in the deposition which conflict with the other evidence and which
could have been explored in cross examination. His Honour was wrong to suggest in his reasons that there was an obligation on the
Appellant’s counsel to cross examine the State witnesses to put beyond doubt that the deceased was among those who were advancing
to attack the Appellant’s group. He was wrong to say that the right to silence must be exercised in toto or not at all; and
for criticizing the Appellant for not drawing a sketch plan for the police. The judge made factual errors in assessment of the evidence.
The respondent's submission with respect to the statements and map tendered by consent in the trial is that "the Appellant has justifiable
argument here ... on the whole of the evidence the Appellant has no argument that the verdict was unsafe and unsatisfactory."
The Law
11. Under our Constitution a person charged with an offence is presumed innocent until proven guilty (s.37(4)(a) and in the conduct of his trial, as provided by subparagraph s.37(4) (f):
" ... shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses... "
12. That right to examine the prosecution witnesses is an important right and one of the bundle of rights which ensures that the accused has a "fair trial" as guaranteed by Constitution s.37(3). Therefore, whenever counsel proposes a course which will admit evidence against the accused without being tested by cross-examination, the trial judge should give careful consideration as to whether the accused is being deprived of his constitutional right and whether it will result in an unfair trial.
13. The main thrust of these provisions of the Constitution is that the case against the accused must be "proven", that is it is "incumbent upon the prosecution to prove every fact and circumstance constituting the offence charged in the indictment":Nai'u Limagwe v The State [1976] PNGLR 382 at 391 per Kidu CJ. "... the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt...": SCR No.1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 and 127-128 Kidu CJ. In the same case of Miles J. with whom Andrew J. agreed said at 43:
"... it is part of the underlying law that the prosecution may discharge that burden only if it proves the guilt of the accused beyond reasonable doubt... the phrase "according to law" in s.37(4) (a) encompasses, inter alia, the underlying law as to standard of proof."
14. In the case of Awoda v The State [1984] 165 Kapi DCJ, Pratt and Bredmeyer JJ discussed generally the duty of the trial judge to ensure that only proper evidence is admitted in the trial and that the conviction cannot be allowed to stand if it is based on improperly admitted evidence. On the other hand where counsel for the accused has not taken objection to evidence at the trial it is a matter to be taken into account on the question of whether the appellant was really prejudiced in deciding "that the proceedings as a whole had not resulted in a fair trial": Teper v R [1952] 2 All ER 447 at 451. The failure of Counsel to object to the admission of evidence improperly admitted is not a bar to raising on appeal that the accused has been wrongly convicted by reason of its admission.
15. In the case of Epeli Devinga v The State [1995] PNGLR 263 the Supreme Court observed:
"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 cost of Justice and the pressure to make trials and the courts more efficient such agreements on the admission of uncontroversial facts should be part of any efficient court system. Those 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 as to what they show on their face, and it is then a matter of the interpretation of the actions of the relevant persons that become critical in the use of such moneys or otherwise. Also medical reports where there is no challenge or doubt as to the condition of the patient are tendered by consent or by the specific provision of 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 any prejudice to a fair trial by the admission of such evidence."
16. And then at the end of the judgment of their honours said:
" Irrespective of whether counsel objects to the admission of certain evidence, it has been said that there is an overall duty on the trial judge to ensure that only legally admissible evidence goes in to the record of the trial":R v Gibson [1887] UKLawRpKQB 27; (1887) 18 QB D. 537; R vEllis [1910] 746, 764; Stirland v DPP [1944] AC 315.
17. We respectfully agree with those statements. We consider it to be a corollary of those observations, that the trial judge should not permit evidence to be admitted by consent in a way which would deprive the accused of the right to cross-examine, if that evidence will affect the issue of guilt or innocence.
18. Consequently we consider that the statement of Brunton AJ in State v Misar iWarun (335) that "... in the absence of a statutory exception, it is improper for the court in a criminal trial in which the accused has pleaded not guilty to accept documents handed up from the Bar Table, by consent." must be read in the light of and subject to the subsequent observations in the judgment concerning the use of s.589 of the Criminal Code.
19. If the document is tended by consent it is an admission of fact in accordance with s.589. Once accepted by the Court it is evidence just as much as any other evidence before the court.
20. Where the matter to be admitted is not a statement of fact drawn for the purpose of s.589 but a statement or affidavit of evidence, greater control by the judge may be called for. The trial judge ought generally to exclude from tender by consent any document which touches on an issue which is contentious, or which "affects the issue of guilt or innocence.": Epeli Devinga v The State (supra).
21. Criminal Code Section 589 permits the admission of facts, not the evidence by which those facts are to be proven, and not statements or affidavits of evidence. When a witness statement, as distinct from a statement of facts, is tendered pursuant to this section there is a great danger, if the contents are critical or contentious, that what the accused is actually admitting will not be clear. In relation to oral admissions from the bar table the difficulty was recognised in Lewis v R (1971) 55 Cr. App R 386,388-389 in the passage quoted by Brunton AJ in The State v Misari Warun [1988-89] PNGLR 327 where the Court said in relation to conducting a trial on admissions alone "...it is a procedure which should be adopted rarely and with extreme caution." In that case the admissions made from the bar table by counsel for the defendant, were that all of the facts cited by counsel for the prosecution in his opening statement were true.
22. Lack of clarity should be avoided, by counsel for the accused tendering a certificate setting out what facts are admitted: The State v Misari Warun(supra) at 328. Order 2 rule 60 of the Criminal Practice Rules contemplates that facts to be admitted will be reduced to writing at the trial, although they can be made orally: O4 r1(a). In a serious case the admissions should be reduced to writing: State v Misari Warun (supra).
23. Pursuant to s.24 of the Evidence Act a witness deposition may be read in evidence for the accused if the witness is dead, too ill to travel or is willing to testify and a magistrate certifies that the witness cannot afford the expense of attending the trial. Pursuant to s.34 the Court may order that facts be proven by affidavit but if the court is of the view that the interests of justice require, the Court retains the power to refuse to admit an affidavit. This power ought to be exercised where the Court will be otherwise placed in the position of choosing between conflicting versions of events without the benefit of seeing witnesses in the witnesses box: Sampson Pulube v Herepe Wapia [1995] PNGLR 472 and [1996] PNGLR 293 (per Kapi DCJ and Hinchliffe J:
"If the lawyers are remiss in calling deponents for cross examination where it is blatantly obvious that some or all of the deponents should be called then it is the duty of the trial judge to assess the situation and to apply the said section if he thinks it necessary for the conduct of the trial and to ensure that not only is justice done but it is seen to be done".
24. That was a civil case but the principle applies with greater force in criminal proceedings.
25. Pursuant to s.102 of the District Court Act and with the consent of the National Court, statements taken in evidence before the magistrate on committal may be put in evidence on the trial if the witness is dead, insane, too ill to travel or is being kept out of the way by the accused, or is a doctor, and upon proof that the statement was served on the accused. The conditions precedent set out in section 102 must be proven. The power of the National Court to consent or refuse admission must be exercised on proper principles and with regard to the Constitution's requirement in section 37 (4) (a) that a person be proven guilty according to law.
26. In our view, in a criminal trial the following statement in R v Henriques (1991) 93 Cr App R 237, 242 concerning the requirement of warning the jury, when a deposition is admitted, is just as applicable to a judge sitting as the tribunal of fact:
"when a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the Deponent nor of hearing his evidence tested in cross examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffith said in Scott v Barns [1989] 89 Cr App r 153 at 161:
‘in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross examination.’
27. Another matter to which the trial judge should be attentive, if a statement is tendered by consent is whether anything on the face of the statement might suggest a lack of comprehension on the part of the maker and call for further inquiry. We have in mind such matters as the statement being signed in a very unschooled hand or by a mark only or the absence of an interpretation clause where one might be expected. As was pointed out in The State v Kai Wabu [1994] PNGLR 498 by Injia AJ (as he then was) in relation to written statement submitted on a committal proceeding:
"The combined effect of s.94(A) and s94C(2) (of the District Court Act) is that the committal court must conduct an inquiry to ensure that the statement was made by the maker of the statement whose signature appears on the statement. He must ensure that the maker of the statement has full knowledge of not only the contents of the written statement but also the correctness and truth of the written statement. The requirement under s.94C(2) is mandatory and require strict compliance. This inquiry is an independent one, which the court must conduct in the exercise of its judicial function."
28. There are deficiencies in the preparation of depositions by Police and omissions by magistrates in committal proceedings to ensure, pursuant to the District Court Act s.94C(2), that the maker of a statement has read and understood it, or had it read to him in a language that he understands. For an abundance of caution the judge proposing to admit a statement which was submitted on the committal proceedings ought to satisfy himself of those matters.
29. In summary, and to assist judges in the future, as a general rule, a trial judge should not admit affidavits or statements of evidence, by consent, in the case for the prosecution, if:
(a). The credibility of the witness is in issue
(b). The accuracy of the witness’s evidence is in issue;
(c). The witness’s evidence conflicts with other evidence in a particular relevant to the guilt or innocence of the accused.
(d). The witness’s evidence bears on a contested fact in the issue of guilt or innocence or upon inferences of such facts to be drawn by the Court in reaching its verdict.
30. Where a deposition is admitted from a witness not present for cross examination the judge should warn himself of the difficulties posed by accepting prosecution evidence from persons whose credibility cannot be tested in cross examination, in particular with respect to any point where the untested deposition is in conflict with oral evidence under oath tested by cross examination.
31. A judge proposing to admit a statement into evidence should satisfy himself that there is some evidence that the maker of the statement understood its contents.
This Case
32. Except for a ruling on particular questions in the record of interview all of the statements of witnesses in the depositions went into evidence by consent (Appeal Book "AB" p35). The Court did not advert at all to the desirability or otherwise of following that course or to the prejudice it might cause the Appellant or the difficulties it might pose for the Court when it came to decide the issues of fact. The prosecution gave no reason for not calling the oral evidence and the Court made no ruling on that issue.
33. The first indication that the omission of oral evidence could cause problems in finding the facts occurred early in the trial when counsel for the Appellant drew the Court’s attention to the fact that the deceased had been shot in the chest, yet the statement of Kurai Kassy, who said she was with the deceased, was that they were running away when the shots were fired. There was a submission to the effect that logic suggested that if the deceased had been running away a shot would enter the deceased's back, not his chest. This apparent discrepancy could have been explored in cross examination.
34. Enuwa Okoko’s evidence was tendered by affidavit bearing, presumably, his mark on pages 1-3 and his mark and the signature of a Commissioner for Oaths on page 4. Tommy Tidipa's affidavit was signed by him on pages 1-3 and witnessed by a Commissioner for Oaths on page 4. None of the statements admitted into evidence was sworn. The Court did not consider whether or not these statements met the test in the District Courts Act s.102 or the Evidence Act. No evidence was taken of the circumstances in which the statements were taken.
35. A perusal of the hand written statements and the affidavits shows that they appear to have been prepared in a different hand from that of the signatory. That is, they were prepared by someone other than the person giving the statement. This in itself is not unusual. However, the statement of Peter Wanis was presented in English with a note at the foot that it was read in pidgin to him. The statement of Kessy Kurai was signed in what could fairly be called an unpracticed hand, as was the statement of Maliyo Nisera, although the statement was presented in English with no indication that it had been translated. In our view these were indications which should have raised a question in the trial judge’s mind, as to whether these untested statements could be relied upon in a trial on a very serious charge.
36. No evidence was taken concerning the makers of the statements and as to whether each of them was sufficiently literate to read and understand their statement or had the statement properly explained to them in a language they understood. There was no factual basis on which the judge could have been satisfied that the statements represented the true evidence of the signatories, a relevant consideration when giving consent to admission of depositions pursuant to section 102 of the District Court Act or section 34 of the Evidence Act.
37. Kessy Kurai and Malyio Nisera were in the company of the deceased and together they were allegedly conducting the unlawful activity of trespassing to steal gold from the mine. The judge did not note in his reasons that these witnesses may have a reason to frame their evidence in a manner less favourable to the accused or that fairness required that the evidence be tested by cross examination.
38. In his analysis of the evidence the trial judge said (appeal book page 240 line 11):
"I... am of the opinion that the evidence that are relevant for purposes of determining whether or not the accused acted in self-defence against an unprovoked assault are the evidence of those who were in close proximity in time and location at the time the accused fired the shots."
39. In doing so he regarded the evidence of Pitu Lapai selectively, accepting the evidence of instructions given by Lapai during the briefing to his men prior to deployment, but ignoring his evidence that he had heard the illegal miners saying that they had guns and were challenging the security. The judge’s reasons give no weight to the evidence of this witness that he saw men hiding behind a rock where the Appellant and his men were walking and that he warned the Appellant by radio.
40. The judge preferred the evidence from the security guards accompanying the Appellant's group and the illegal miners who were in the company of the deceased. There was however, in our view, no basis for preferring one body of evidence over another without the benefit of cross examination and observing the witnesses in the witness box. Proximity to the incident could not justify exclusion of the evidence from Pitu Lapai, who claimed to have a view of the Appellant and the men accompanying him immediately prior to the shots being fired. A more distant view may assist the court in understanding the wider view of the events and may have value, as the evidence of a witness more removed from the tensions of the moment. This evidence, excluded solely on the basis the witness was not proximate to the scene of the shooting, might have been favourable to the Appellant.
41. Returning to the evidence of illegal miners Kessy Kurai and Malyio Nisera, in contrast to the evidence of Kessy Kurai, who said they were running away when the shots were fired, Malyio Nisera said that they were facing the security guards when the shots were fired. This was a discrepancy which could have been explored in cross examination. This evidence bore on the question of whether the illegal miners were advancing or retreating from the Appellant and was obviously relevant to the Appellant's defence of self defence. The court had no way of resolving that discrepancy without the benefit of cross-examination and observing the witnesses in the witness box.
42. This short examination of the analysis in which the trial judge engaged and the issues to be resolved in the evidence demonstrates the difficult and highly undesirable position in which the judge was placed and the prejudice to the Appellant; by reason of the admission of all the depositions by consent, and the loss of the opportunity to cross examine and observe the witnesses.
43. It demonstrates that admitting the statements by consent left unanswered or not clarified questions or points in the evidence which might have been illuminated by cross-examination. It left the possibility that the evidence may not stand up under cross examination and it was not the "best evidence...(of) which the nature of the Court case permits": See The State v Hekavo [1991] PNGLR 394, Doherty J.. There was a contest as to the inference of fact to be drawn from the evidence, the facts were not uncontroversial. The tender by consent resulted in the judge preferring unsworn and untested evidence over the sworn and tested evidence of the Appellant. The judge did so without warning himself of the dangers presented by relying upon depositions in terms of R v Henriques (supra). Cf The State v Peter Raima [1993] PNGLR 230 (Brown J) where the judge considered at some length the possible prejudice to the accused of allowing into evidence a statement and affidavit where a witness was unwilling to testify.
44. There was no evidence that the witnesses were not available, or that calling them would incur hardship, cost or delay. Not requiring the witnesses to be called offended the "best evidence" rule and resulted in the Appellant not receiving a fair hearing: See State v Raima (supra) and Davinga v State (supra).
45. Permitting the State’s case to proceed solely on the tendered statements was a wrong course which tainted the whole trial. The judge should have refused to accept the unsworn statements of witnesses as it was not in the best interests of justice. The State should have been ordered to produce the witnesses to be called to give the evidence: See State v Bill White [1996] PNGLR 262, 269-270. Admitting the untested witness statements touching on evidence important to the Appellant’s defence and depriving the Appellant of the opportunity of cross-examination, even though by his own counsel's express consent, has made the verdict unsafe and unsatisfactory. We will allow the appeal on that ground alone.
46. There is no need to address the other grounds argued by the Appellant. However we wish to make some comments on the "right to silence" issue.
The Right to Silence
47. The Appellant was the only witness who gave oral evidence and he was tested in cross examination. His Honour said he did not believe the Appellant’s evidence and gave two reasons for doing so. The first was that the Appellant had been selective in his answers to the Police in the Record of Interview and his Honour was of the view that the right to silence must be exercised "in toto" (AB 243.15) and that remaining silent was "withholding information from police" (AB 243.10).
48. The second reason was that more than two years after the alleged crime the Appellant had produced a sketch of the scene. His Honour postulated "why then did he not draw his sketch plan during the record of interview and explain to police when they were investigating this crime?"
49. As to the first reason, with respect, we say that it is not the law that the right to remain silent is qualified by the condition that it must be exercised ‘in toto’ or not at all. It is well established that the right not to be a witness against oneself is an unqualified right to remain silent and that silence can never be used to assist the prosecution case by an inference of guilt from silence. In the case of Paulus Pawa v The State [1981] PNGLR 498 Andrew J. observed that:
"an innocent man charged with a crime or any conduct reflecting on his reputation,, can be expected to refute the allegation as soon as he can by giving his own version of what happened." (See R v Sparrow (1973) 57 CR App 352)
50. That statement has been cited as authority for the proposition that some inference can be drawn by the failure of the accused to answer questions, or put forward his version of events or an alibi at the police station, a proposition with which we respectfully disagree. The over riding consideration in that case, with respect to the drawing of inferences from the silence of the accused is that the silence of the accused only becomes relevant after the State has established a prima facie case. The ratio of the case is that no inference can be drawn from failure of the accused to give evidence at the trial. The case is not authority for the proposition that silence at any time prior to trial is relevant after the State has established a prima facie case. Kearney DCJ said:
"... no accused person may be compelled to testify. He may choose not to do so. In that event the court may be left with an incomplete picture. In such circumstances, the court may draw inferences which properly flow from the evidence, and make its conclusions there on without being deterred from so doing by the incomplete state of the evidence... only in that way may the accused by not testifying "strengthen" the State case".
51. Andrew J. said:
"... the one thing they (the tribunal of fact) must not do is assume that he is guilty because he has not gone into the witness box..."
52. Kapi J. (as he then was) said:
"whether an accused person is guilty or not of an offence must be determined on the evidence of the prosecution alone and no inference of guilt by failure of the accused to call evidence should improve a prosecution case."
53. The reasons a person might remain silent at the Police Station are wide and varied. The Scrutiny of Acts and Regulation Committee of the Parliament of Victoria (Australia) Inquiry into the Right to Remain Silent (March 1999) identified the following explanations for silence, other than guilt:
54. (Or we add, to the last point, in respect of Papua New Guinea, that the lawyer was unable to be present at, or obtain instructions prior to, the interview.)
55. In the United States it was pointed out in Doyle v Ohio [1976] USSC 120; 426 US 610 (1976) (Supreme Court) that silence after a "Miranda" warning (a warning that a person questioned by police need not say anything in response to police questioning against himself (the 5th Amendment, which has been referred to as a parallel of the Papua New Guinea Constitution s.37(10): See State v Allan Woila [1974]PNGLR 99),) is "insolubly ambiguous" and "can as easily connote reliance on the right to remain silent as to support an inference that his trial testimony was a later fabrication": United States v Hale [1975] USSC 126; 422 US 171 (1975). The same approach was adopted in England: R v Naylor (1933) 1 KB 685; R v Leckey (1944) 1 KB 80. The varied reasons that a person might remain silent under questioning at the police station are also examined in some detail in the Law Commission of India 108th Report 2002 (page 16 and onwards).
56. Many cases in this jurisdiction have long recognized the applicability of the Judges Rules, and in particular, that a person taken into custody must be given to understand that he is under no compulsion to speak, that anything he says should be said voluntarily, but that anything he does say may be taken down and given in evidence in compliance with Rule 5:
"The caution to be administered to a prisoner when he is formally charged should therefore be: 'do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.' Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist it clear him of the charge.": See Criminal Law of Queensland fourth edition by R. F. Carter, page 655.
57. The Judges Rules are in addition to the constitutional right not to bear evidence against oneself (Constitution section 37 (10).
58. Since the mid-to late 1980s reference to the Judges Rules in reported judgments of the National Court have fallen into obscurity. Our brother Justice Lenalia referred to the Judges Rules in 1997: see the State v John Wanju [1997] PNGLR 64, and again in 2005: see State v Towes Minmin (2005)N 2915 and State v Remi Mission (2005)N 2917; those being the only references in the reported and unreported cases in almost 20 years.
59. Whether the Judges Rules are:
are not issues which have been settled by this Court. There has been no argument before us on these matters which must be left for another day.
60. However it is the experience of the judges of this Court sitting as trial judges in the National Court that records of interview conducted by Police Officers, almost in every case, now introduce at an early stage of the interview a statement similar to the one which appears on the record of interview of the Appellant in these terms:
" Q3--you do not have to say anything unless you wish to do so, whatever you do say will be taken down in writing and produced in court. Do you understand that? " (and repeated at Q8 after an interruption in the interview.)
61. It has been held in the United States, Canada, and the United Kingdom (before 1994) that no inference can be drawn from silence at the police station: see the cases cited in paragraphs 55 and 63. It is argued that to draw any adverse inference from silence at the police station is to place in the hands of the police a weapon with which they can coerce an accused person to speak when they do not wish to do so, by threatening that if the accused does not speak then an adverse inference may be drawn by the court. This would be the equivalent of the warning now authorized by statute in the UK, Jamaica and other jurisdictions, to the effect that "anything which you do not say now in your defence might harm your defence if you later rely on it in court."
62. In criminal trials in the United Kingdom, because of legislative intervention, both as to the nature of the warning to be given to the accused at the police station, and as to the inferences which may be drawn by the court, the court is permitted to draw inferences from the defendant’s failure, when questioned by the police or charged, to mention a fact later relied on in defence, which the defendant could reasonably have been expected to mention when questioned. The United Kingdom courts are not permitted to draw any inference from the silence itself. The inference must be drawn from the circumstances that a fact relied upon by the accused at his trial was not mentioned to the police during questioning, when an appropriate warning had been given -see the Criminal Justice and Public Order Act 1994 (United Kingdom) section 34. This would seem to be a legislative extension of the common law, as developed in this jurisdiction, that it is permissible for a trial judge to comment adversely on a belated alibi: John Jaminan v The State (No.2) [1983] PNGLR 318.
63. Another reason often cited for not permitting any inference to be drawn from silence before trial is Constitution or a Bill of Rights protection against giving evidence against oneself, a protection which is contained in our Constitution (section 37(10). Similarly to the argument made pursuant to the Judges Rules, it is argued that drawing any inference from silence before trial places pressure on the accused to speak, and cuts down on the Constitutional right not to give evidence by making it costly to the accused to exercise it: Griffiths V. California Corp. [1965] USSC 127; (1965) 380 US 609; and see also R v. Amway Corp. (1989) (1) SCR 21 (Canada) where it was held the silence of the accused could not be used to determine his guilt. That no reliance should be placed on the silence of the accused at the police station has been held to be the law also in Hong Kong, and Australia: See Chau Chi-Hung v. The Queen [1982] HKCA 215 (Hong Kong), Petty (1991) 173 CLR 95, 97 (High Court of Australia); Coyne [1996] 1Qd R 512, 519 (Queensland, Australia)
64. It has been argued that the only inference that can be drawn from silence of the accused at the police station is that the accused had no good answer to the questions asked "at that time": South African Law Reform Commission Report 2002 paragraph 6.28. However in our view, until there is evidence to the contrary, the only inference that can be safely drawn from silence at the police station, is that the accused was exercising his right to silence in accordance with the warning given to him by the police officer conducting the interview. Why the accused exercised that right cannot be inferred from silence.
65. Because of the multiplicity of reasons which might operate on the mind of the accused, and the danger of a wrong inference being drawn from silence, a court should be very slow to malign the accused’s version of events, solely because that version was not given to the Police at the interview, or to draw any inference from silence at the police station. This is a different issue from delay in providing particulars of an alibi before trial, on which a judge may comment: John Jaminan v The State (No.2) [1983] PNGLR 318 at 332-334 as we have noted at paragraph 62.
66. Many of the issues discussed in this judgment have not been argued before us in this case. Until the occasion arises on which all of the issues discussed above can be fully argued, our view is that a judge should not comment on the silence of the accused at the police station. The judge may comment on the accused’s silence which occurs after he has been formally called upon to defend himself (such at the committal proceedings) if:
1. The State has established a prima facie case;
2. The accused goes into evidence;
3. The delay in putting forward the accused 's version of events (as distinct from mere silence) after he has been formally called upon to defend himself (such as at a committal proceeding), is commented upon by the judge as a factor in disbelieving the defence, and not as a factor of weight in proof of the State case.
67. In this case, there was no evidence as to the circumstances surrounding the accused 's refusal to answer certain of the questions put to him by the police. His reasons for doing so were not explored in evidence before the court. He had been given the usual warning. In those circumstances we think that the factual basis had not been established for drawing an inference that there was no good reason for refusing to answer the questions at the police station or any other inference adverse to the accused in relation to his evidence given at the trial, by reason of some questions not being answered. Therefore the trial judge should not have commented on the failure to answer some questions or have drawn any inference from it.
68. As to the alleged failure of the Appellant to do a sketch for the Police at his interview we do not consider it was proper of the trial judge to take that into account in weighing the Appellant’s evidence, first because as the Appellant submits he was not asked to do a sketch by Police or offered the opportunity to do so. Secondly if the Police want comment with reference to a sketch plan of the scene, it is for the Police to prepare a sketch and to give the accused the opportunity of commenting on it. There is no obligation on a person to assist Police with their enquiries by preparation of a sketch of the scene and there should be no unfavourable comment or inference drawn by reason of their alleged failure to do so.
WHETHER A NEW TRIAL SHOULD BE ORDERED
69. In Charles Bougapa Ombusu v The State [1997] PNGLR 699 at 702 the Supreme Court referred to considerations set out by Bredmeyer J in Oscar Tugein v Michael Gotaha [1984] PNGLR 137 when considering whether or not a new trial should be held:
"...in determining whether or not a retrial should be ordered, the following matters (inter alia) may be relevant:
(a). the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;
(b). the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;
(c). the seriousness and prevalence of the particular offence;
(d). the consideration that the criminal trial is an ordeal which the defendant ought not to be condemned to go through for a second time through no fault of his own unless the interest of justice require that he should do so;
(e). the length of time elapsing between the offence and the new trial if ordered; and
(f). the strength and availability of the evidence.
With respect, we endorsed and adopt his Honour’s observations. The list is not exhaustive.
It is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of a trial, the appellate court has ordered a new trial be conducted"
70. The trial in this matter has miscarried through a procedural error by counsel and the Court;
1. The charge is a serious one;
2. No expense has been incurred as yet by any party in relation to the attendances of witnesses nor have witnesses been inconvenienced, other than the Appellant;
3. The charge is one of the most serious and regrettably very prevalent;
4. The trial miscarried through no personal fault of the Appellant, the trial was fortunately quite short in duration;
5. In our view the interests of justice require that the accused should undergo another;
6. The length of time between the offence and the new trial will be a little over 4 years which is not unusual at the present time; and should not prevent the conduct of a fair trial;
7. As to the strength of the evidence, the statements from the committal, such as they are, establish a prima facie case. The State witnesses may or may not come up to proof, the evidence may also establish a defence, but that can only be determined by a full trial. The availability of witnesses will have to be determined by the prosecution.
ORDERS:
1. The appeal is allowed;
2. The conviction is quashed and the sentence set aside;
3. A new trial shall be held before another judge;
4. The matter shall be given priority and the trial held within the next four months;
5. The Appellant is remanded in custody pending trial, subject to any application for bail.
_______________________________________________
Blake Dawson Waldron: Lawyers for the appellant
Public Prosecutor: Lawyers for the respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2007/15.html