Amoko, The State v [1981] PNGLR 373 (4 June 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 373 - The State v Amoko-Amoko 

[1981] PNGLR 373

N312(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

AMOKO-AMOKO

Waigani

Pratt J

2-4 June 1981

CRIMINAL LAW -Parties to offences - Accomplices - Who is - Person who could be charged on same indictment - Receiver of stolen property is accomplice on break and enter charge.

CRIMINAL LAW - Particular offences - Breaking and entering - Receiver of stolen property is accomplice.

CRIMINAL LAW - Evidence - Corroboration - Accomplices - Who is accomplice - Danger of convicting on uncorroborated evidence of accomplice - Rule of practice to advert to warning - Need to record warning.

EVIDENCE - Corroboration - Accomplices - Who is accomplice - Danger of convicting on uncorroborated evidence of accomplice - Rule of practice to advert to warning - Need to record warning.

An accomplice is a person who could be charged on the same indictment with the principal offender.

McNee v. Kay [1953] VicLawRp 2; [1953] V.L.R. 520, and

State v. Nataemo Wanu [1977] P.N.G.L.R. 152 at p. 158 applied.

R. v. Ready and Manning [1942] VicLawRp 2; [1942] V.L.R. 85 not followed.

A receiver of stolen property, where the charge is one of breaking and entering, is an accomplice because he is particeps criminis in a broad sense.

Davies v. Director of Public Prosecutions [1954] A.C. 378 and,

R. v. Sneesby [1951] Q.S.R. 26 at p. 29 followed.

Courts in Papua New Guinea should as a matter of practice take heed of the common law warning that it is dangerous to convict on the uncorroborated evidence of an accomplice.

The State v. Titeva Fineko [1978] P.N.G.L.R. 262, and

The State v. Nataemo Wanu [1977] P.N.G.L.R. 152 followed.

The State v. Joseph Tapa [1978] P.N.G.L.R. 134 not followed.

Failure of the court to direct itself and failure to record advertence to the warning in reasons for judgment may lead to the quashing of a conviction.

Trial.

This was the trial of an accused on a charge of breaking entering and stealing.

Counsel:

C. Bourke, for the State.

N. Kirriwom, for the accused.

Cur. adv. vult.

4 June 1981

PRATT J:  In this matter Amoko-Amoko of Kade has been charged that between midday 29th January, 1980, and midday 30th January, 1980, he broke and entered the store of I.C.I. (Papua New Guinea) Pty. Limited and therein stole seven boxes of cartridges to the total value of K750.00, the property of the said I.C.I. (Papua New Guinea) Pty. Limited. The facts very briefly are that on the night of 29th January or the early hours of the morning of 30th (more likely the night of 29th January), the accused and several others went to the magazine used by I.C.I. for storage of ammunition and gelignite. At least several crawled under a gap beneath the protective fence which surrounds the building and it is deposed by the witness Mavai that the accused broke open the locked door. There is no doubt that the door was locked. There is no doubt that on this particular night at least seven boxes of cartridges were taken from that building and there is also no doubt that on the previous night there had been another break and enter but the lock which had been broken on that occasion was replaced during the day of 29th January.

The witness Mavai and the others including Amoko, according to Mavai, returned to the village with at least part of their booty. Mavai left his one or two cartons of cartridges at the house of the State witness Godwin Romney. The next day it was apparently decided in the village or amongst certain members of the village, that the cartridges should be buried. Romney assisted Mavai to bury his boxes in a hole separate to that in which it is said Amoko and his compatriates buried their cartridges, but both excavations were very close together. There was some care taken in the burial in order to prevent water from damaging the ammunition, as corrugated iron was used as a base and as a top in the hole.

The police subsequently obtained information which led them to dig up part of the ground near the toilets but they make no mention of whether any corrugated iron was discovered in the locality. All they found was one spent cartridge case, blue in colour, and a piece of a cardboard carton or small cardboard box bearing the name “Blues” which, according to the Assistant Manager of I.C.I., was a brand of cartridge stored in the magazine. I would add here that the police obtained their information from the witness Godwin Romney who had been given a box of the cartridges by the witness Mavai on the night of or the day after the break and enter. He had proceeded off to Bereina fairly shortly after the break and enter, it appears, and did not return to Port Moresby until October of last year. During a friendly conversation with the police at the Boroko Hotel, it emerged that he knew something about the break and enter because he did have possession of certain cartridges which were the same brand as that kept in the magazine. The accused was questioned and made no admissions to the police. In fact he denied all knowledge of the break and enter and of any possession of the stolen items. He has not given evidence in this Court but has made a statement from the dock denying any complicity in the break and enter and any complicity in the burying of the items on the following day. That of course is not on oath and therefore does not carry a great deal of weight. Nevertheless, it is material which I must take into account when I assess and weigh all the evidence.

Now the defence submit that the court cannot be satisfied beyond reasonable doubt in this case of the accused’s complicity in the crime, because the only real evidence put forward by the State is derived from accomplices. It is conceded by the State that the witness Mavai is an accomplice in the full sense of the word. No argument exists about that, nor could one do so. He is an unsatisfactory witness. Whether this be caused through age or through a lack of intelligence or through craft in an attempt to cover up certain aspects which would make the situation seem worse from his point of view, I am not sure.

The second witness, Godwin Romney, however presents the real difficulty. Godwin is a plumber by trade. His association with this incident appears to be fairly fleeting. It is undoubtedly the case that he did receive items stolen from the magazine. It is also undoubtedly the case that he participated in secreting some of that booty, no doubt thereby assisting those who were the main movers in the whole scheme both to escape detection, (for clearly to have a number of carton of cartridges lying around the various houses of the village would immediately raise suspicion), and also no doubt to have them available for future use. As I said a little earlier however, Romney disappeared from the scene for quite some months after that. The defence say that he is an accomplice and being an accomplice his evidence requires corroboration and that that corroboration is lacking. As a result I cannot, at least without warning myself very strongly in the traditional manner used for juries where accomplice’s evidence is concerned, proceed to conviction. In fact it is my appreciation of the defence submission that it is a rule of law and not just a rule of practice that such warning must be given. There are two aspects therefore which are involved for consideration here. Firstly, who is an accomplice and second, is corroboration required now in Papua New Guinea either as a matter of law or as a matter of practice where the evidence of an accomplice is involved. I made some passing reference to this very problem in the recent Supreme Court decision of Peter Townsend v. George Oika[dcx]¹, although that case concerned corroboration in a matter of sexual assault and did not raise, as this trial does, the question of corroboration on the evidence of accomplices. However I made some general comments which are equally applicable to this case.

I propose first to deal with the question of whether corroboration is necessary or desirable in Papua New Guinea where the evidence is that of an accomplice. The starting point of course is the case of Davies v. Director of Public Prosecutions[dcxi]², and at p. 399 the three propositions accepted by the House of Lords are set out:

(1)      “In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.”

(2)      “This rule, although a rule of practice, now has the voice of a rule of law.”

(3)      “Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to section 4(1) of the Criminal Appeal Act, 1907.”

In dealing with the matter of corroboration and accomplices in this jurisdiction, Prentice C.J. was not prepared to accept this statement of the law as completely appropriate to the circumstances of Papua New Guinea. At pp. 263 to 264 of the report of The State v. Titeva Fineko[dcxii]³ his Honour says, inter alia:

“In Papua New Guinea, the law permits conviction on the evidence of an accomplice alone. Some of the decisions under the English Common Law as to the evidence of accomplices, and in particular the way in which the tribunal must be directed, I consider may be regarded as inappropriate to Papua New Guinea conditions. The situation in Canada is interestingly referred to in R. v. Joseph (1939) 3 D.L.R. 22. In Papua New Guinea the evidence of accomplices, in the experience of the judges, is usually given not in a spirit of vindictiveness; but with a sense of justice very much in mind. It is more than possible that in many cases, it is done also with an intent to avoid a pay-back upon the unconvicted man’s family or clan.

Nevertheless, I remind myself that it is regarded as dangerous to convict on an accomplice’s evidence alone.”

His Honour then goes on to deal with the facts of the case. So that although his Honour considered that certain of the decisions (though he does not say what they were) are not appropriate to the circumstances of Papua New Guinea, he nevertheless did warn himself of the dangers.

In The State v. Joseph Tapa[dcxiii]⁴, Pritchard J. dealt fairly extensively with the question of corroboration in relation to the evidence of accomplices. In rejecting the common law rule as inappropriate to Papua New Guinea, his Honour said at p. 145:

“It (the rule in Davies’ case[dcxiv]⁵) is a rule relating to a direction to be given to juries. Papua New Guinea has no juries, and in my view, as night follows day, it is inapplicable to this country for that reason.”

With great respect, I cannot agree that it is a direction only applicable in the case of jury trials. The authorities make it clear that where a tribunal of fact, be it magistrate or judge sitting alone, fails to direct its mind to the requirement, a conviction will or may be quashed depending on whether one accepts rr. 2 and 3 of Davies’ case (supra). This aspect was adverted to by Frost C.J. in the case of The State v. Nataemo Wanu[dcxv]⁶. His Honour says:

“Upon this part of the case I have found such references as are available to me of McNee v. Kay ([1953] V.L.R. 520) of assistance. I would respectfully agree with Sholl J. that the rule of practice is not to be limited to jury cases, but should at common law be applied to any legal tribunal.”

(Just as an aside here, I would add that his Honour did not have available to him the report of this case in Lae. It was necessary for him to make reference to the headnotes in the A. Digest.)

The statement adopted by Frost C.J. I would also adopt as a proposition of law applicable and appropriate to the circumstances of Papua New Guinea. The actual part of the judgment referred to by his Honour in McNee v. Kay[dcxvi]⁷ I take from the report of that judgment where Sholl J. says:

“It is true that the common law rule has been principally considered in relation to jury cases, for the obvious reason that it is principally in relation to such cases that the proper approach to the evidence of accomplices and others comes to be formulated in a manner examinable on appeal. But it is obvious that if the rule, in its common law form, is a ‘counsel of caution’ to be regarded in weighing evidence (cf. Wigmore, op. cit., p. 315), it, and any analogous application of a similar warning, are just as much applicable to the consideration of evidence by any other tribunal of fact as to its consideration by a jury. It is doubtless for that reason that in the jurisdictions where the rule as to obligatory warnings has been made statutory, so as to amount to a rule of law and not merely a counsel of caution, it has been expressed in general terms applicable to all offences and not merely to those in fact tried before a jury;”

His Honour refers to s. 633 of the Queensland Criminal Code which made it obligatory for the evidence of accomplices to be corroborated before it could be acted on. That section no longer applies in Papua New Guinea and indeed was repealed prior to the present Criminal Code coming into operation and was not reincorporated in the new Criminal Code. His Honour goes on:

“Again, take a case of larceny, triable, under secs. 72 et seq. of the Crimes Act as amended, either by a jury or at the option of the accused by justices, and suppose the only evidence against the accused is that of an accomplice. It cannot be the policy of the law that the accused should be worse off if he elects to be tried before justices, and that in that alternative the tribunal shall be entitled to convict without having in mind the same counsel of caution as would be applicable if he were sent for trial before a jury.”

His Honour then gives some further examples. A little further down on p. 534, after dealing with a Canadian decision as well as a Queensland case, his Honour says:

“In short, the rule of practice as to obligatory warnings should, in my opinion, be applied by any legal tribunal in relation to the trial of any criminal charge in respect of which a witness is held to have been an accomplice within the strict meaning of that term; and, furthermore, a prosecutor is not entitled to complain if the tribunal applies a similar caution, by way of voluntary warning, where the witness, though not strictly an accomplice, is held to have been guilty of a cognate or similar offence in relation to the events on which the charge is based, capable, in the opinion of the tribunal, of leading to the falsification of his evidence.”

His Honour goes into another matter which I shall deal with a little later. We also see references in such learned works as Stone’s Justices’ Manual (1973 ed., Vol. 2, p. 3525), for example the following words (dealing with corroboration in sexual cases):

“On indictment the jury should be directed (or on summary trial the magistrates court should direct itself) that it is not safe to convict upon the uncorroborated evidence of the complainant, but if satisfied with the truth of the evidence and after paying due attention to the direction, they may convict.”

Again in Bourke’s Police and Summary Offences (2nd ed.), we find for example at p. 181 where the learned author is clearly dealing with summary offences, a number of authorities dealing with the practice of judges warning juries in matters requiring corroboration, there is no suggestion there that such warning is something which may be disregarded or ignored by magistrates. In fact the format clearly infers that the author considers, as one would expect, such requirement as being applicable just as much to magistrates as to juries. The point I am driving at here is that whichever textbook one examines on summary offences or the jurisdiction of justices, there are always sections dealing with corroboration in respect of evidence by accomplices and in relation to sexual offences. At no stage is it even remotely suggested that such rules are not applicable to magistrates. In fact there is a specific reference to the necessity for magistrates so to warn themselves appearing in Stone. So far as the circumstances of Papua New Guinea are concerned, I would think the rule of practice is even more appropriate than in England as many of our magistrates are still yet young and inexperienced and often do not have the assistance of counsel before them. It seems highly dangerous to the proper administration of justice to suggest to such persons or indeed to anyone sitting as a judge of fact alone, that the rule is unnecessary or undesirable. There certainly do arise occasions which make it difficult to determine whether or not the principle of practice should be applied. But I cannot see why the odd occasion of confusion should be used to jettison what I regard as a fundamental concept.

Pritchard J. goes on in the case of Joseph Tapa[dcxvii]⁸ at p. 147 to say:

“Because ... it (that is the rule in Davies[dcxviii]⁹) has enabled obviously guilty people to escape proper punishment when it has not been strictly complied with, I am convinced it is inappropriate to the circumstances of Papua New Guinea.”

I do not think those who administer the law in other common law jurisdictions would be any less concerned with this possibility than the judges of Papua New Guinea. The point is, his Honour’s statement begs the question. If the accused is “obviously” guilty, then clearly it is safe to convict even though the desired corroboration is absent. If on the other hand the absence of corroboration leaves a doubt, then irrespective of what others may think on the issue, the judge must acquit. The approach is perhaps one of basic philosophy. In my view, the rules on corroboration re accomplices, together with a number of other important rules of evidence, were primarily formulated to prevent the conviction of an innocent person. It has long been recognized that our system of jurisprudence is not perfect but I am not at all convinced that it is more appropriate to the circumstances of Papua New Guinea to risk a few innocent people being put in gaol in order to obviate the possibility of “obviously guilty people to escape proper punishment”. His Honour further goes on in the same judgment of Joseph Tapa (supra) at p. 147 as follows:

“That people in Papua New Guinea who are accomplices may be motivated to tell lies for the reasons advanced for the rule coming into being is true, but my experience in this country has demonstrated clearly that in the great majority of cases, the motivation is simply that the accomplice believes it is unjust that he should be punished when his co-offender is not.”

That may be the experience of Pritchard J. but it is not mine. Certainly it does happen, but I have not found people in Papua New Guinea any different from anyone else when it comes to basic human nature—be it in its good or bad aspects. I have particularly noted in the last eighteen months the human tendency to blame the other fellow is most manifest in such crimes as breaking and entering where the person charged before the court is always the lookout and never the one who actually does the job. It may be that I have just encountered an unusual number of genuine lesser lights but my credulity is certainly coming under strain. Finally before I leave this case of Joseph Tapa[dcxix]¹⁰, I would specifically draw attention to the final paragraphs of his Honour’s judgment at p. 149 which he has numbered 4 and 5. In par. 4 his Honour says that he also finds it inapplicable to the circumstances of Papua New Guinea to follow the rule that an uncorroborated evidence of one accomplice cannot corroborate the uncorroborated evidence of another accomplice. In par. 5 he says:

“It is not necessary that a court should specify in giving its decision that it has followed the detail of these rules but from a practical point of view, e.g. to avoid unnecessary appeals, it is desirable that it do so.”

With great respect, I would specifically dissociate myself from the principles which his Honour has enunciated in those two paragraphs. They represent a departure from basic principle which I consider quite unfounded, and in the absence of a decision by the Supreme Court on the matter I do not consider that such a radical departure obtains any warrant or justification under Sch. 2.3. of the Constitution. I do not read that part of the schedule as an invitation to abandon the principle of judicial comity, or to substitute a new principle of law under the guise of developing the underlying law. There is no underlying law in this area, so far as I am aware, apart from the United Kingdom common law.

It seems to be clear however that in Papua New Guinea as indeed in some other common law jurisdictions, it has been deemed by the judge generally inappropriate to hold that the warning has acquired the force of a rule of law. Rather it has been regarded as a matter of practice only, the absence of which will make it difficult to sustain the conviction on appeal. But the situation as I conceive it does not exist in Papua New Guinea where automatically the conviction is quashed, and in common with Prentice C.J. and Frost C.J. in Titeva Fineko[dcxx]¹¹ and Nataemo Wanu[dcxxi]¹² respectively, I would continue to hold what I conceive to be the view of most judges of this Court over the years that the third proposition in Davies’ case[dcxxii]¹³, that is an automatic quashing of the conviction if the judge fails to warn the jury, and the second proposition that the rule of practice now has the force of a rule of law, are not appropriate to the circumstances of Papua New Guinea. Nevertheless it is clear from what I have said that a failure by a judge or magistrate to direct himself and to show that he directs himself, could well, and most probably would lead to a quashing of the conviction.

This brings us then to the real question at issue in this trial, namely, who is an accomplice; for if, to deal with specifics, Godwin is an accomplice, I have already ruled that I must warn myself in the clearest terms to accept his evidence only after a great deal of scrutiny and after giving myself the proper warning. At p. 400 of Davies’ case[dcxxiii]¹⁴ their Lordships deal first of all with those persons wo are particeps criminis in respect of the actual crime charged—whether they be principals or accessories—and they go on in that paragraph to make the following statement:

“... But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz.:

(2)      Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny.”

Two cases are quoted, one in 1912 which was before the 1916 Theft Act and one in 1925. Were it not for words that occur later on in that passage, it may be said that their Lordships are not postulating that the above paragraph represents the law, but simply that it has been held by others to be the law. It appears clear however that in fact Lord Simonds is saying it has been the law and is now the law. His Lordship goes on at p. 400.

“In both these cases (in this trial I am concerned only with the second case—a receiving) ... a person not a party or not necessarily a party to the substantive crime charged was treated as an accomplice for the purpose of the requirement of warning (I say ‘not necessarily’ to cover the case of receivers. A receiver may on the facts of a particular case have procured the theft, or aided and abetted it, or may have helped to shield the thief from justice. But he can be a receiver without doing any of these things). The primary meaning of the term ‘accomplice’, then, has been extended to embrace these two anomalous cases. In each case there are special circumstances to justify or at least excuse the extension. A receiver is not only committing a crime intimately allied in character with that of theft: he could not commit the crime of receiving at all without the crime of the theft having proceeded it. The two crimes are in a relationship of ‘one sided dependence’.”

Then at p. 401 his Lordship goes on:

“My Lords, these extensions of the term are imbedded in our case law and it would be inconvenient for any authority other than the legislature to disturb them.”

That then is what the House of Lords had to say in 1954 on who were accomplices. In a decision of this Court by Frost C.J., which I referred to earlier (The State v. Nataemo Wanu[dcxxiv]¹⁵), his Honour examines the case of Davies v. Director of Public Prosecutions[dcxxv]¹⁶ in the light of what was said by Sholl J. in McNee v. Kay[dcxxvi]¹⁷. His Honour has specifically adopted the statement by Sholl J.:

“An accomplice must be a person privy to the criminal intent of the accused and the common law rule as to obligatory warnings is limited accordingly.”

The reference in Davies’ case (supra) to “one sided dependence” is exactly the sort of problem that was facing his Honour Philp J. in the Queensland case of R. v. Sneesby[dcxxvii]¹⁸. Now again this was not a case of stealing—it was a sexual offence involving a man and two boys. It was sought to substantiate certain indecent dealings which were performed on one of the boys by the man Sneesby and his Honour eventually ruled that the boy upon whom the sexual assaults had been carried out could not be corroborated by the other boy who was present and knew that the indecencies were going to be carried out. He in fact thought he was going to get paid for bringing the other lad to the office. Thus they were both involved in the alleged indecency with Sneesby. But as his Honour pointed out, there was a special technical difficulty there because the accused was charged under s. 210 of the Criminal Code (Qld) and for certain reasons which will be obvious to counsel, the boys could not be charged under that section. However they could have been charged under s. 211 which deals with gross indecencies between male persons. Indeed his Honour was of the view that had they been charged under s. 211, they would have been convicted. With some doubts admittedly, his Honour says at p. 28:

“In R. v. Baskerville ([1916] 2 K.B. 658, at p. 665) it is said that an accomplice should be corroborated because he is admittedly a criminal. In my opinion that goes too far. The reason for the rule I think is that an accomplice is a person who would be likely to lie in order to save his own neck, or his own liberty. Lord Macaulay says somewhere that an accomplice giving evidence is like ‘a cormorant fishing for prey with a rope around his neck’. It is fair to assume that an accomplice may be induced to lie in order to get a pardon, or to get immunity from prosecution, or, perhaps, lesser punishment. As I said before, in my opinion ss. 7 and 632 (the section prohibiting conviction on the uncorroborated evidence of an accomplice) are not, as it were, co-extensive. For instance, if a man steals a watch and the next day hands it to another telling him it is stolen, when that other is charged with receiving the thief could not also be charged with receiving despite s. 7. But, in my view, on a prosecution of the second man for receiving, the thief would be accomplice because he is particeps criminis in a broad sense. I think that in the case before me I have to give a meaning to the word ‘accomplice’ to cover the case of boys such as these, who, although not chargeable with the actual offence with which the prisoner is charged, nevertheless have brought themselves, by the very acts to which they were party, within the criminal law, that is to say within s. 211.” (Emphasis mine.)

Thus his Honour held that both boys fell into the category of accomplices to the offence charged against Sneesby. Now in McNee’s case[dcxxviii]¹⁹ Sholl J. sets out at length on p. 530 the situation in Victoria. McNee (supra) is quite a long decision and a very very detailed one. It closely examines the two separate streams of authority which Miss Bourke mentioned in her final address, on the question of corroboration and who are accomplices. The difficulty facing Sholl J. was that he was not free to decide himself which stream to follow in the particular case before him because of the previous Full Court decision of R. v. Ready and Manning[dcxxix]²⁰ to which I will refer in a moment. What his Honour says at p. 530 about that case is as follows:

“However that may be, if I were free so to hold, I should consider the true principle to be that that person is an accomplice within the common law rule who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.”

Before I deal with the propositions specifically decided in that case, I point out that Davies’ case[dcxxx]²¹ has not been followed in part by the Full Court of Victoria, for in R. v. Teitler[dcxxxi]²² a specific reference was made to the House of Lords’ decision and the case was not followed on two points. The first point was that the rule is restricted to the case of prosecution witnesses. The Victorian Court says, “That is not the way we see the law and we don’t propose to change our views”, and it is not an aspect that concerns me in this trial. The second one however does. The Full Court of Victoria was not prepared to accept that the matter had gained the force of a rule of law and continued on with the view that it was a rule of practice only. That is the position as I appreciate it applicable to the circumstances of Papua New Guinea.

From the above discussion the following points emerge. Davies’ case[dcxxxii]²³ says quite clearly that a receiver is an accomplice. Miss Bourke has said that Davies’ case (supra) on this aspect is obiter and if it were any other sort of case, I would have to agree with her submission. But the point is, Davies (supra) is a House of Lords’ decision. There is no suggestion by the judges making up the Full Court in Teitler’s case[dcxxxiii]²⁴ that what their Lordships said was obiter. I do not think it is obiter because of the special functions which the House of Lords is given to perform in circumstances such as came before it in Davies (supra). I can perhaps best illustrate this by going to some remarks passed by two of the judges in a joint decision appearing at p. 327 of Teitler’s case (supra). Near the bottom of that page Lowe and O’Bryan JJ. say:

“The actual decision therefore was on rather a narrow point, viz., that an accomplice for the purpose of the rule is one who is particeps criminis in respect of the actual crime charged, and does not include one who is party to a common assault only which ended in one of the party committing in the course of the assault the crime of murder. However, as the Attorney-General in that case had certified that the case raised a point of law of exceptional public importance, the House took time to consider the whole question, as a matter of general principle, of the warning required to be given in the case of evidence of an accomplice in a criminal trial.”

Simonds L.C. who delivered the judgment of the House (in Davies (supra)) stated the rule in relation to the evidence of an accomplice under several headings. As I say, there is no suggestion that merely because it wasn’t the point in issue, therefore what their Lordships said can be treated merely as obiter.

R. v. Ready and Manning[dcxxxiv]²⁵ however is really the ultimate authority for Miss Bourke’s submission that I should not treat Romney Godwin as an accomplice in this case. For it is authority for the two propositions upon which Miss Bourke relies. If I go to the head note at the start of the report, we find the following:

“A Person is not an accessory after the fact unless he does something positive to assist the principal offender.

An accomplice must be privy to the criminal intent of the principal offender before the commission of the crime. Accordingly an accessory after the fact is not an accomplice.”

That is straightforward enough. And it may or may not be the law in Papua New Guinea that an accessory after the fact is not an accomplice. On the facts of this case it is not ultimately necessary for me to decide that issue. The principle there stated certainly was adopted by Sholl J. in McNee’s case[dcxxxv]²⁶ and seems to have been accepted by Frost C.J. in Nataemo’s case[dcxxxvi]²⁷. But there are certain matters that one must note before accepting that as a statement of the law in Papua New Guinea. First one should bear in mind that the wording of s. 33 (1) of the Larceny Act 1916 of the United Kingdom is somewhat different to the wording of our own section dealing with receivers found in s. 422 of our Criminal Code. The English Act appears to deal with a receiver as it would with the thief for it uses the words “he shall be guilty of an offence of the like degree whether felony or misdemeanour and on conviction shall be liable to ...”, and then sets out the penalties. The situation however is dealt with somewhat differently in Papua New Guinea and I refer to the specific wording of s. 422(1) of the Criminal Code:

“422.   RECEIVING STOLEN PROPERTY, ETC.

(1)      Any person who receives anything which has been obtained by means of any act constituting an indictable offence, or by means of any act done at a place not in Papua New Guinea which if it had been done in Papua New Guinea would have constituted an indictable offence, and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a crime.”

In addition there may be a further complicating factor which may or may not exist both in Victoria and in the United Kingdom. I refer here specifically to the provisions of s. 545 of our Criminal Code which makes accessories after the fact liable to be charged on the same indictment with the principal offender. So clearly, as far as Papua New Guinea is concerned, it seems to me that if a person can be put on the same indictment as the principal offender it is difficult to see how he could not be treated as an accomplice. To that extent I think that R. v. Ready and Manning[dcxxxvii]²⁸ may not be good law for this country.

There is however, a more basic point at issue here. The original common law position as stated in Halsbury’s Laws of England, 3rd ed., Vol. 10, at p. 302, note, “o”, is in the following terms:

“At common law the mere receipt of stolen goods by a person who knew that they were stolen did not of itself make such a person an accessory after the fact to the larceny, but if a person knowing that goods were stolen received them from a thief to keep for him, or to facilitate his escape or to furnish him with supplies, then that person was an accessory after the fact.”

This note follows on a more general statement in the main body of the text which prompts the belief that the specific wording of the Larceny Act 1916 had a considerable influence on the way in which the learned author of this part of Halsbury formed his principle. The text reads:

“A person who, knowing a felony to have been committed by another, receives, maintains, comforts, or assists the felon in any way, either to aid in the disposing of the proceeds of the crime or to hinder his being apprehended or tried or suffering punishment, is an accessory after the fact.”

The essence of the matter seems to reduce itself to this. In many instances a receiver may be an accessory after the fact. Just as obviously, there are instances in which he would not. In the present case Godwin Romney appears to fall under both headings. He certainly received the carton or packet of cartridges and put them in his own house, and had them in his possession for some months. What his original intention was, we do not know. He is not on trial in this case, and that of course is something we all have to bear in mind. Indeed had he been cross-examined closely on these areas, I would have been bound to warn the witness. And had he taken heed of the warning, we would still be no further enlightened than we are at the moment. The point is that I have to draw certain inferences from such evidence as I have. It may be, as Miss Bourke says, that he is a technical receiver only but that doesn’t help the prosecution very much. In addition to being a receiver, the facts of this case also illustrate that he is an accessory after the fact, because he was clearly assisting in burying the items stolen. One of the purposes would obviously be to prevent detection by passers-by or persons coming to the village on social calls or even maybe if the police happened to come there because someone had given them information about this matter, or because there was some dispute in the village that required police intervention. That being the position then, it seems to me that I am left with the clear statement of the law set forth in Davies’ case[dcxxxviii]²⁹ that a receiver is an accomplice and that he is an accomplice because he falls into a special category—perhaps the category described by Philp J. in Sneesby’s case[dcxxxix]³⁰ as “the broad sense”, because of association with the crime.

I do not propose to spend any time on the witness Mavai. I have already expressed my views concerning his lack of reliability and credibility.

Coming to Godwin in light of the principles which I have expressed, I must in my view warn myself to accept his evidence with a great deal of scrutiny indeed, for he is an accomplice and must be treated as such. Although no evidence was given by the defence on oath, it seems to me that there are a certain number of undercurrents going on in this village which leaves one with a sense that all is not well. Mavai of course was assaulted by the accused some time after the offence and one would think that would certainly give occasion for bad blood and, if the situation arose, spitefulness. Godwin is the son-in-law of Mavai. Although he is a man from the Northern Province, he is married to a Goilala girl and lived at that stage with Mavai in the village of Kade. Some suggestion was made, without a great deal of success, that some trouble concerning the accused and a Goilala woman arose during last year in the village. The accused from the dock stated that his divorce of his wife who was also a Goilala and related to Mavai, is the cause for the illwill of Mavai and Godwin. In addition to that undercurrent we also know that Godwin’s house was broken into and his goods stolen some short time after the break and entry of the I.C.I. magazine. I do not think in this particular case I can really gain anything from that incident one way or the other. It could be suggested that it was done because Godwin had informed on the present crime, but the incident at Godwin’s house occurred long before he reported the present matter to the police. Godwin himself says he doesn’t know who broke into his house, even to this day, and it is not suggested by him that Amoko did it. When one puts all these factors together, particularly the divorce by the accused of a relative of Mavai, the relationship between Godwin and Mavai and the fact that Mavai himself was assaulted, it introduces a certain degree of dissatisfaction as to whether I have got to the bottom of the matter at all. It is certainly not beyond the realm of mere speculation that Amoko might have been “set-up” to take some of the blame. I do not say that such is the case. But I must be satisfied beyond reasonable doubt that he is guilty of the offence charged. I am left in the position where I have no confession, no admission from the witness box by the accused, and two State witnesses, one of whom is certainly suspect and the other who requires corroboration as a matter of practice, upon which to bring in a verdict.

In the upshot I am left with a feeling of dissatisfaction over the whole incident which prevents me from coming to the conclusion beyond reasonable doubt that the accused was implicated in this particular offence. In those circumstances I have no alternative but to acquit the accused.

Verdict of not guilty.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the defendant: A. Amet, Public Solicitor.

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[dcx][1981] P.N.G.L.R. 12.

[dcxi][1954] A.C. 378.

[dcxii][1978] P.N.G.L.R. 262.

[dcxiii][1978] P.N.G.L.R. 134.

[dcxiv][1954] A.C. 378.

[dcxv][1977] P.N.G.L.R. 152 at pp. 157 to 158.

[dcxvi][1953] VicLawRp 2; [1953] V.L.R. 520 at pp. 533 to 534.

[dcxvii][1978] P.N.G.L.R. 134.

[dcxviii][1954] A.C. 378.

[dcxix][1978] P.N.G.L.R. 134.

[dcxx][1978] P.N.G.L.R. 262.

[dcxxi][1977] P.N.G.L.R. 152.

[dcxxii][1954] A.C. 378.

[dcxxiii][1954] A.C. 378.

[dcxxiv][1977] P.N.G.L.R. 152 at p. 158.

[dcxxv][1954] A.C. 378.

[dcxxvi][1953] VicLawRp 2; [1953] V.L.R. 520.

[dcxxvii] [1951] Q.S.R. 26 at p. 29.

[dcxxviii][1953] V.L.R. 520.

[dcxxix][1942] VicLawRp 2; [1942] V.L.R. 85 at p. 93.

[dcxxx][1954] A.C. 378.

[dcxxxi][1959] V.R. 321.

[dcxxxii][1954] A.C. 378.

[dcxxxiii][1959] V.R. 321.

[dcxxxiv][1942] V.L.R. 85.

[dcxxxv][1953] V.L.R. 520.

[dcxxxvi][1977] P.N.G.L.R. 152.

[dcxxxvii][1942] V.L.R. 85.

[dcxxxviii][1954] A.C. 378.

[dcxxxix] [1951] Q.S.R. 26 at p. 29.