The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (2001) N2298

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 October 2001
• Court: National Court
• Citation: (2001) N2298
• Year: 2001
• Judgement Number: N2298

Full Title: The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (2001) N2298

National Court: Kandakasi J

Judgment Delivered: 16 October 2001

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Admission of witness statements by consent—Party consenting not at liberty to call rebuttal evidence on the basis of rule in Brown v Dunn and to question credibility of witnesses—If rebuttal evidence is called little or no weight should be placed on such evidence—Acceptance of such evidence may amount to unfair trial for party consenting.

2 CRIMINAL LAW—Particular offence—Aiding and abetting armed robbery—Robbery of a boat—All of State's evidence by consent—No direct evidence against accused—Only inference open on the available evidence pointing to guilt of accused—Return of guilty verdict—Criminal Code s386(1), s386(2)(a) and (b).

3 EVIDENCE—Effect of evidence admitted by consent—Prevents compliance of rule in Brown v Dunn (1879) R (HL) and consenting party from presenting rebutting evidence—If rebuttal evidence is presented little or no weight should be attached—Court still obliged to assess weight of evidence tendered by consent or not rebutted before decision on verdict.

4 EVIDENCE—Assessment of—Inconsistencies between prior statements in record of interview and subsequent oral evidence—Inferences to be drawn from totality of evidence—Matter of logic and common sense—Evidence or claims inconsistent with logic and common sense not credible—Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself—Only inference open accused evidence incredible and unreliable.

5 WITNESSES—Credibility of witnesses—Statements of witnesses tender by consent amounts to no contest on their credibility—Accused person giving brief oral evidence in contradiction of statements made in record of interview with no explanation of the reasons for the inconsistencies—Such witnesses are untruthful and unreliable in the absence of any credible explanation for such inconsistencies.

6 Browne v Dunn (1893) 6 R 67 (HL), The State v Ogadi Minjipa [1977] PNGLR 293, The State v Saka Varimo [1978] PNGLR 62, The State v Kauva Lavau and Kamo Kauva (1996) N1523, The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498 and Garitau Bonu and Rosanna Bonu v The State (1997) SC528 referred to

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N2298

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 964 of 2001

THE STATE

-V-

EDWARD TOUDE, WALTER YOGANA,

TANA BARINDA & JOHN TAYLOR ANANI

ALOTAU: KANDAKASI, J.

2001: 10th, 11th and 16th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Admission of witness statements by consent – Party consenting not at liberty to call rebuttal evidence on the basis of rule in Brown v. Dunn and to question credibility of witnesses – If rebuttal evidence is called little or no weight should be placed on such evidence – Acceptance of such evidence may amount to unfair trial for party consenting.

CRIMINAL LAW – Particular offence – Aiding and abetting armed robbery – Robbery of a boat – All of State’s evidence by consent – No direct evidence against accused – Only inference open on the available evidence pointing to guilt of accused – Return of guilty verdict –Criminal Code ss. 386 (1), (2) (a) and (b).

EVIDENCE – Effect of evidence admitted by consent – Prevents compliance of rule in Brown v. Dunn (1879) R (HL) and consenting party from presenting rebutting evidence – If rebuttal evidence is presented little or no weight should be attached – Court still obliged to assess weight of evidence tendered by consent or not rebutted before decision on verdict.

EVIDENCE – Assessment of – Inconsistencies between prior statements in record of interview and subsequent oral evidence – Inferences to be drawn from totality of evidence – Matter of logic and common sense – Evidence or claims inconsistent with logic and common sense not credible – Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself – Only inference open accused evidence incredible and unreliable.

WITNESSES – Credibility of witnesses – Statements of witnesses tender by consent amounts to no contest on their credibility – Accused person giving brief oral evidence in contradiction of statements made in record of interview with no explanation of the reasons for the inconsistencies – Such witnesses are untruthful and unreliable in the absence of any credible explanation for such inconsistencies.

Cases cited:

Browne v. Dunn (1893) 6 R 67 HL.

The State v. Ogadi Minjipa [1977] PNGLR 293.

The State v. Saka Varimo [1978] PNGLR 62.

The State v. Kauva Lavau & Kamo Kauva ( unreported judgement 26/09/96) N1523.

State v. Morris [1981] PNGLR 493.

Garitau Bonu & Rosanna Bonu v. The State (unreported judgement 24/07/97) SC528.

Counsel

K. Popeu for the State

D. Kari for the Accused

DECISION ON VERDICT

16th October, 2001

KANDAKASI J: Edward Toude (“Edward”), Walter Yogana (“Walter”), Tana Barida (“Tana”) and John Taylor Anani (“John”), you all pleaded not guilty to one count of armed robbery contrary to section 386 (1) (2) (a) and (b) of the Criminal Code (“the Code”) allegedly committed on the 22nd of March 2001 at Tarakwaruru Wharf. That was here in the Milne Bay Province, on a boat known as MV 434 (or “the boat”) from where a sum of K14,700.00 (“the money”) belonging to Kiwali Exports of Alotau was stolen. You did not carry out the robbery but the State alleges that by virtue of section 7 of the Code, you are principle offenders. This is because it alleges you aided and abetted the commission of the offence by a gang numbering about 6 men armed with 2 factory made shot guns, 3 metal pipes and one double-edged grass knife being dangerous weapons.

The specific allegations against each of you are that, there was a plan for the robbery and each of you knew of it and played the following parts:

· Edward – you were the supercargo on the boat and were in charge of the money on the boat. You went to Tana and spoke to him that day before the robbery, thereby suggesting that you spoke to him about the intended robbery.

· Walter – you were on the boat at the time of the robbery. Though you had no right to, you had the keys to the captain’s cabin (“the cabin”) where the money was kept. The captain did not know of you having the key but Edward did. When the robbers came onto the boat, you opened the cabin door thereby making it easy for the robbers to enter and steal the money.

· Tana – you knew of the robbery before it took place and got paid for your part in it. Because of that you failed to do anything to prevent the robbery from taking place.

· John – you supplied one of the guns used by the robbers and got paid for it.

The State admitted into evidence with your consent a number of statements in evidence against you. These are the statements of:

1. Beryl Kibikibi of Kiwali Exports undated – Exhibit “A”

2. William Inia dated 27 the March 2001 – Exhibit “B”

3. Jerome Kunsoro dated 27th March 2001 – Exhibit “C”

4. Charles Sigerua dated 31st of March 2001 – Exhibit “D”

5. Kaniku Togunitu dated 4th April 2001 – Exhibit “E”

6. Kinizi Wingi dated 4th April 2001 – Exhibit “F”

7. Warriupa Jeffrey dated 5th April 2001 – Exhibit “G”

8. Kinzi Wingi dated 18th April 2001 – Exhibit “H”

9. Kinzi Wingi dated 4th April 2001 – Exhibit “I”

10. Kinzi Wingi dated 10th April 2001 – Exhibit “J”

11. Warriupa Jeffrey dated 5th April 2001 – Exhibit “K”

12. Warriupa Jeffery dated 5th April 2001 – Exhibit “L”

13. Robert Bala...