Paulus Pawa v The State

• Jurisdiction: Papua New Guinea
• Judge: Kearney DCJ, Andrew J, Kapi J
• Judgment Date: 27 November 1981
• Court: Supreme Court
• Judgement Number: SC216

Supreme Court: Kearney DCJ, Andrew J, Kapi J

Judgment Delivered: 27 November 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAULUS PAWA

V

THE STATE

Waigani

Kearney DCJ Andrew J Kapi J

2 October 1981

27 November 1981

CRIMINAL LAW — Evidence — Burden of proof — Circumstantial evidence — Inferences to be drawn — Question of fact — Relationship of inferences to finding of guilt — Overall view of case.

CRIMINAL LAW — Evidence — Failure of accused to testify — Inferences available and weight thereof — Inferences determined by common sense.

When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

Barca v. The Queen (1975) 133 C.L.R. 82, at p. 104; 50 A.L.J.R. 108 at p. 117 adopted and applied.

The State v. Tom Morris [1981] P.N.G.L.R. 493 affirmed.

Where an accused person fails to give evidence or to call witness to support his case the court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified.

Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn therefrom;

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

(3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case;

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

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

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

(c) whether the accused is legally represented;

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

Appeal.

This was an appeal and an application for leave to appeal against conviction on a charge of break enter and steal.

Counsel:

D. O'Connor, for the appellant.

C. J. Bourke, for the respondent.

Cur. adv. vult.

27 November 1981

KEARNEY DCJ: The facts and circumstances giving rise to this appeal are set out in the opinion of Andrew J. which I have had the benefit of reading. I respectfully concur in his Honour's reasoning and conclusions. I would add only the two following observations.

First, where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. This proposition merely re-states, in a way particularly useful in dealing with circumstantial evidence, the basic proposition that the State must prove its case beyond reasonable doubt: see Grant v. The Queen (1975) 11 A.L.R. 503 at p. 504 (HC).1. The learned trial judge correctly approached the case in this way.

Second, no accused person may be compelled to testify. He may choose not to do so. In that event, the court may well be left with an incomplete picture. In such circumstances, the court may draw inferences which properly flow from the evidence, and reach its conclusions thereon, without being deterred from so doing by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified: see R. v. Sharmpal Singh [1962] A.C. 188 at p. 198 (PC).2. Only in that sense may an accused by not testifying "strengthen" the State case.

ANDREW J: This is an appeal and an application for leave to appeal against conviction imposed by the National Court sitting at Mt. Hagen on 26th February, 1981. The appellant was charged that on or about 25th day of November 1980 in Papua New Guinea he broke and entered the Mt. Hagen District Court House and therein stole a safe containing the sum of K4,350 in cash, the property of the Government of Papua New Guinea. Following conviction the appellant was sentenced to imprisonment for two years and ten months with hard labour.

The case against the appellant was largely circumstantial. The appellant was a clerk of the District Court in Mt. Hagen and as part of his duties he was in possession of the only key to the court's safe. On the night of 25th November, 1980 the court house was broken into by the smashing of glass doors and the safe was removed from the general office. It was found the next day down a precipice leading to a river near Kogua plantation and brought to the police station. It was still locked and when cut open cheques and court documents were found inside but there was no cash. Evidence was called from the clerk of the court which established that at the close of business on 25th November, 1980, there should have been an amount of K4,327 in cash in the safe.

The learned trial judge found that none of these facts in themselves went very far towards implicating the accused in the offence that was committed that night. The appellant did not give or call evidence in the trial, nor did he make an unsworn statement. But there was evidence that on the morning after the offence he spoke to the clerk of the court and said that on this night he had travelled in a truck from his village with his friend to go to the pictures. He felt uncomfortable with the safe key in his back pocket and he took it out and put it in the truck's ash tray. Arriving at the theatre he ensured that the truck was locked. After the pictures he said that he noticed that the small glass of the truck had been broken but fortunately the vehicle had not been stolen. He said he did not notice then that the safe key was missing. He drove back to Keltiga Community School where his wife was a teacher and he spent the night there. Early next morning he drove down to his home village and on the way back he sa the safe being pulled from the river. He said that it was then that he thought of the key and when he checked in the ashtray of the truck, the key was not there. There was evidence from a police constable, one Constable Peter Avoa, that he had seen the appellant at 10 p.m. that night outside the Highlander Hotel in Mt. Hagen. He had a conversation with the appellant and later he accepted a lift in the appellant's vehicle which took him into town. In cross-examination it was put to Constable Avoa that he had never seen the appellant at the hotel and that he had not gone in the appellant's vehicle. Constable Avoa insisted that he had.

The learned trial judge found that the evidence of Constable Avoa was crucial. He accepted his evidence and could not therefore accept the accused's statement, made to the clerk of the court, that he had been at the pictures. It followed that he could not accept the accused's story that the safe key was stolen from his vehicle. In this regard the trial judge took into account that the appellant had not called any evidence, which on his story he could have, that his vehicle had been broken into whilst he was at the pictures.

Thereafter there were findings that none of the appellant's statement could be accepted. It was found that the appellant had an excellent motive for the particular modus operandi of this break and enter, namely that the safe was taken ten miles away, opened with a key and locked again and then discarded. As the trial judge said:

"A thief who had stolen the key would be most unlikely to use this peculiar method of committing the crime. He would simply use the key, open the safe in the Court House and steal the contents."

It was noted that the safe had been dumped in the vicinity of the appellant's village and in a place where it would not easily be found.

In convicting the accused, the trial judge,...