Public Prosecutor v Vakalalabure [1998] VUSC 13; Criminal Case No 059 of 1997 (11 May 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

CRIMINAL JURISDICTION

CRIMINAL CASE No. 59 OF 1997

ALIGN="CENTER">PER">PUBLIC PROSECUTOR

-v-

(1) TEVITA VAKALALABURE
(2) EMOSI KOROI
(3) SAMUELA RICA

Coram: Mr Justice Vice Vincent Lunabek, Acting Chief Justice

Counsel: Mr Willie Daniel for the Public Prosecutor
Mrs Susan Bothmann Bafor the 3 Defendants

RUR">RULING ON ADMISSIBILITY

On 21st April 1998, I directed that the Defence Counsel will specify items of evidence to which there are objections, note the reasons for those objections with supporting authorities. The prosecution also is required to respond to these objections.

Before I consider the specific items of evidence to which objections were made, it has to be observed generally that the rule against hearsay is a rule excluding a means of proof; it is not a rule which acts to exclude facts.

Evidence of a statement will infringe the hearsay rule only if the statement is offered as a means of proving the truth of the matter which is stated. Where a statement is offered as a fact (rather than as a means of proving that fact) it is not, as such, hearsay evidence.

There is a difference between "admissible hearsay" which consists of statements which are facts and "inadmissible hearsay" which consists of statements proffered so as to prove other facts.

An informal admission of a party as to matters of fact or law, made to some person in privity with him (e.g. an agent) may be admitted as evidence against him in relation to its contents in criminal proceedings, as an exception to the hearsay Rule.

An admission may be implied from a party’s conduct [R. v. Cramp (1880) 14 Cox C.C. 390]. It may be favourable only in part to the person making it, but, nevertheless, the statement in its entirety may be put in. But still, like all evidence given in any case, it is for the Judge of facts to say whether he/she really believes it [see R v. Higgins [1828] EngR 201; (1829) 3 C. & P. 603].

I have to make it clear that, at this stage of the proceedings, I, as the Judge of law, will consider the question of admissibility. This is not the appropriate time for me as the trier of fact to exercise any judicial discretion and exclude pieces of evidence on the basis that their probative values are very small and are far outweighed by their prejudicial effect.

I will now turn to pieces of evidence upon which objections were made.

1) Evidence of Prosecution witness: Junior Mgoon

(a) Relating an incident concerning his friend Bruno and his uncle Tevita.

Witness Junior Mgoon: "He said (meaning Tevita) I’ve got the gold". and later in his evidence he relates his uncle saying: "Bruno thinks he’s got real gold - but no - I have the real gold."

That piece of material evidence is a statement made against interest by the Accused Tevita that he has got the real gold. That piece of evidence constitutes an informal admission.

"At common law, statements adverse to the case of a party who made that statement are admissible, as an exception to the rule against hearsay to prove the truth of the facts admitted. Informal admissions are statements made by a party from which the Court would be entitled to find facts or draw inferences adverse to the case of that party. An informal admission is, therefore, merely one piece of evidence to which the Court may have regard when considering the facts to which it relates. Its weights will depend upon the circumstances." see Murphy pp. 212 & 213.

That piece of evidence is an admissible piece of hearsay evidence against the Defendant Tevita Vakalalabure. [See the case of R v. G.F.S. & W. (1974) 1 N.S.W.L.R. 31 at 40.

(b) Relating a conversation taking place on a Sunday in August 1997.

Witness Junior Mgoon said: " I sat on a chair inside the door - just a single chair, it had a cushion on it, my uncle (Tevita) told me "have you heard of any break-in in Vila"- I said "no" and he told me about Prouds. I looked at him and he said "us" and he pointed to Emosi and Samu. He said the three of us. They did not say anything".

The Defence submits the statement is inadmissible in relation to the Defendant Tevita. The report is vague and ambiguous and therefore impossible to construe as other than an "off the cuff" remark. In relation to the Defendants, Emosi and Samuela, it is submitted on their behalf that the piece of evidence is inadmissible.

See Murphy p.240 "At Common law, it is a fundamental principle of the use of admissions and confessions that an admission of confession is evidence against the maker of the confession only, and not against any other person implicated by it. This is a rule applicable to statements made in all circumstances by way of admissions."

See R v. Spinks (1982) 1 All ER 587.

The Prosecution totally disagrees with the Defence submissions. The Prosecution says the witness’ testimony about what the Defendant said is very straight forward and not vague and ambiguous like the Defence is alleging in their submission. The evidence of this witness is clearly a relation of the Defendant’s statement made against his (defendant) interest. Everything that was said in that conversation at that time is all relevant to the present issues before the Court.

That piece of evidence is admissible evidence against the Defendant Tevita.

As to whether this evidence is admissible against the 2 Defendants: Emosi and Samuela, the Prosecution says it is admissible against the 2 Defendants. It is put for the Prosecution that the evidence of the witness shows that when the statement was made in the presence of the other two Defendants (Emosi, Samuela) they did not say anything but kept silent.

The Prosecution says the law is that a confessional statement can only affect the maker but it will not affect another co-defendant unless he/she either expressly or impliedly adopts the same to be his or her own. The Prosecution submits that the 2 Defendants’ silence shows that they did accept the statement made by the Defendant Tevita as their own at the time. [See R v. Christie [1914] UKLawRpAC 20; (1914) A.C. 545].

The piece of evidence will be conditionally admissible against the 2 Defendants:

- Emosi

- Samuela.

In R v. Christie [1914] UKLawRpAC 20; (1914) A.C. 545 at... Lord Atkins says:

"The rule of law undoubtedly is that a statement in the presence of an accused person, even upon an occasion which should expected reasonably to call for some explanation or denial from him is not evidence against him of the facts stated save so for as he accepts the statements, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the Jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when the statement was made amounts to an acceptance of it in whole or in part."

See also Tripoli v. R. [1961] HCA 22; (1961) 104 CLR 1 p.6.

(c) Other pieces of evidence of the witness Junior Mgoon.

"They told me to burn the tags they had taken out of the bags." "My uncle told me to take the jewelleries and bury them."

"He told me to burn the tags."

"My uncle told me to dig up the jewellery."

These pieces of evidence are admissible evidence. These pieces of evidence related to conversations between the witness and the Defendants. They are relevant to the issues of where the price tags where coming from, who brought them to the Mgoon house and what is the purpose of them being brought to the Mgoon’s house.

These pieces of evidence are tendered as facts to show that these conversations had taken place between the Defendant and the witness. [See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 956-969].

The power of the Judge to exercise his discretion to exclude a piece of evidence that its probative value is very small and is far outweighed by its prejudicial effect is a different question to be exercised when assessing all the evidence in this case.

2) The Evidence of the witness Losana.

"Tevita came up to me and asked me to go to Mary Mgoon’s to check under the cushion to collect some stuff that was Emosi’s. He is speaking Fijian."

This piece of evidence is admissible against the Defendant Tevita and it will be conditionally admitted against the Defendant Emosi.

3) The witness Mary Mgoon.

"She (meaning Losana) told me after the trial..."

"She told me that after the bail application on Tuesday Tevita told her to go into his room and to take out something under the chair."

This piece of evidence is admissible to the extent that Losana had a conversation later with the witness Mary Mgoon. The basis of its admissibility is to test the credibility of witness Losana’s testimony that she did talk to Mary Mgoon. But not to prove the truth of the content of the statement.

DATED AT PORT-VILA, this 11th DAY of MAY 1998

BY THE COURT

Vincent Lunabek, J.
Acting Chief Justice