The State v John Bosco (2004) N2777

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 26 November 2004
• Citation: (2004) N2777
• Docket Number: CR 933 of 2002
• Court: National Court
• Year: 2004
• Judgement Number: N2777

Full Title: CR 933 of 2002; The State v John Bosco (2004) N2777

National Court: Lay, J

Judgment Delivered: 26 November 2004

N2777

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 933 of 2002

THE STATE

AND

JOHN BOSCO

LAY, J.

KIMBE

2004: 17th 18th 19th and 23nd November and

PORT MORESBY

2004: 26th November

Criminal Law – defendant’s failure to call a witness – inference available to be drawn – conditions precedent to drawing inference – evidence – cross examination of witness tribunal is asked to disbelieve – desirable to put to witness cannot be believed.

Counsel

Mr Popeu for the State

Mr Geita for the Defendant

VERDICT

Facts

The Defendant was charged with willful murder of a man in a coconut plantation, by the Defendant and others cutting the deceased with bush knives. The Defendant gave an alibi that he was some distance away with two named men watching the murder and not with the people committing the murder. The Defendant did not call the two persons he said he was with.

Held

1. Great care should be exercised in drawing a Jones v Dunkel inference that a witness not called by an accused would not have assisted the accused’s defence in a criminal trial and;

2. No inference should be drawn from the failure of an accused person to call a witness unless:

a. It is solely for the purpose of assessing the strength of the Defence and never for the purpose of bolstering the case for the Prosecution;

b. The name and address of the witness or the fact that the witness could give relevant evidence was only known to the State at or shortly before trial, and;

c. From the defence presented by the accused the witness ought to be able to give evidence to assist the accused’s defence, and;

d. The evidence would not be merely contradictory of the State case but tend to establish facts known only to the accused; and,

e. There is evidence that the name and address of the witness are known to the accused and the witness is available to be called;

f. There is no credible explanation of why the accused is not going to call the witness.

1. No inference was drawn in the present case from the Defendant’s election not to call the two witnesses who might have been expected to assist his case, because the pre conditions in 2 above were not established

2. The Defendant’s and his witness’s evidence was inconsistent with the medical evidence and the photographic evidence of the scene tendered by consent and could not be believed.

3. The Defendant is guilty of willful murder.

4. If the prosecution is going to ask the Court to disbelieve a witness it should be put plainly to the witness in cross examination that he cannot be believed.

Cases Cited

The State v Ben Noel, Philip Noel and Richard Ereku (2002) N2253

Paulus Pawa v State [1981] PNGLR 498

David Kandakason v The State SC558

State v Ogadi Minjipi [1997] PNGLR 293

Overseas Cases

Jones v Dunkel 101 CLR 298

Jason Aldridge v R [1998] EWCA Crim 581

R v Brennan [1998] QCA 163

Dyers v Queen [2002] HCA 45

Azzopardi v R (201) 205 CLR 50

R v Buckland (1997) 2 NSWR 452

R. v Gallagher (1974) 59 Cr. App. R.239

R v Wheeler [1976] 3 All ER 828R

R v Hart (1932) 23 Cr.App. R 202

LAY, J. The Defendant was charged with one count of willful murder contrary to s299 of the Criminal Code. I delivered a verdict of ‘guilty’ on 23rd November 2004 and advised I would deliver my reasons with some comments on the principle in Jones v Dunkel

1 101 CLR 298

1 at a later date, which I now do.

The State’s case was that during a customary ceremony drunken youths including the deceased, Ignatius Reu, incited a fight in Binunu sub village, Bamba near Talasea in West New Britain. Ignatius Reu cut one James Karoa with a bush knife and then the Defendant acted in concert with some of his village men and some others chased Ignatus Reu into the nearby plantation and willfully murdered him by cutting him with bush knives.

Jones v Dunkel

During the trial the Defendant gave evidence of an alibi. The alibi was that the Defendant was not at the scene of the murder but some distance away watching what was happening at the scene and, that while he was watching he was standing with two named persons. Those persons were not called by the Defendant to give evidence in his defence.

The principle in Jones v Dunkel

2 Supra

2 can be shortly stated as, the failure of a defendant to call a witness who might reasonably be expected to support his defence, can give rise to an inference that the witness would not support the defence, unless the absence of the witness is adequately explained.

During submissions at the close of the evidence, mindful of the principle in Jones v Dunkel as explained in The State v Ben Noel, Philip Noel and Richard Erekue

3 (2002) N2253 Kandakasi J.

3 I invited Counsel for the Defendant to make any submissions he wished upon the fact that the several witnesses who might have been expected to give material evidence, had not been called. Since doing so I have had the opportunity to read some of the more recent developments in the Commonwealth concerning the application of this particular principle.

As mentioned in The State v Ben Noel, Philip Noel and Richard Erekue the principle has been discussed mostly in the context of jury trials in criminal cases but is applied where jury trials are no longer available and in civil cases tried by a judge alone. Some difficulties arise with the application of the principle which have been discussed in more recent authorities. In Jason Aldridge v R

4 [1998] EWCA Crim 581 (17th February, 1998) LORD JUSTICE OTTON ,MR JUSTICE WRIGHT ,And ,MR JUSTICE DYSON PER Lord Justice Otton

4 the United Kingdom Court of Appeal (Criminal Division) read the following passage from Archibold

5 Page 467 para’s 4-400 and 4-401.

5 with approval

In R v Wheeler [reference given], the court appeared to come down against any comment. In R v Gallagher [reference given], the Court of Appeal regarded the views expressed in the two earlier cases as inconsistent. It said that in any event both cases were distinguishable because in those cases the witnesses in question had been equally well known and available to both sides, whereas in the instant case, the prosecution had no means of knowing that the witness had any relevant evidence to give until the defendant gave evidence. The court held that in such a case comment could be made, but the judge must avoid leaving the jury with the impression that failure to call a particular witness is something of importance when there may be a valid reason for not calling him." The line of authority is discussed further and finally the learned editor's note:

"Until the matter is further considered by the Court of Appeal, it is submitted that, in accordance with Wheeler, a judge should not comment adversely on the failure of the defence to call a particular witness unless that witness was not equally available to the prosecution: for example, where the prosecution could not have anticipated the relevance or identity of a potential witness until the defence case had commenced, or where the witness was always available to the defence but could not have been called by the prosecution at any time. Even then, adverse comment is probably only appropriate in a very strong case."

Later in the same year the issue came before the Court of Appeal of Queensland in the case of R v Brennan

6 [1998] QCA 163 (26 June 1998) Before McPherson J.A. Thomas J. Ambrose J. per McPherson JA

6 where the President of the Court delivering the majority judgement approved a direction to a jury in terms that an inference can be drawn to the effect that `nothing which these witnesses could say would assist the accused', but not one in terms which suggests or allows the inference that the witnesses would not have given evidence favorable to the accused.

In 2002 the High Court of Australia re-visited the principle in the case of Dyers v The Queen

7 [2002] HCA 45 (9 October 2002) GAUDRON AND HAYNE JJ (Kirby and Callinan JJ agreeing)

7. The Court summarised its view in the following way

1 “As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi

8 (2001) 205 CLR 50 at 74 [64].

8. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. …The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt

The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be...