The State v Raphael Kimba Aki (2001) N2039

• Jurisdiction: Papua New Guinea
• Citation: (2001) N2039
• Date: 26 January 2001
• Court: National Court
• Year: 2001

Full Title: The State v Raphael Kimba Aki (2001) N2039

National Court: Kandakasi J

Judgment Delivered: 24 or 26 January 2001

1 CRIMINAL LAW—Particular offence—Murder—Intention to cause grievous bodily harm—Defence of alibi raised but no evidence produced—Identification by recognisance not rebutted by any evidence—Guilty verdict returned—Criminal Code (Ch262), s300(1)(a).

2 CRIMINAL LAW—Evidence—Identification by recognisance—Murder committed in the dark—Need to warn dangers of mistaken identification—Admission of evidence by consent—Treatment of statement from the dock—Less weight to same

3 The State v Misari Warun (1988–89] PNGLR 327, The State v John Bill White (No 1) (1996] PNGLR 262, Epeli Davinga v The State (1995] PNGLR 263, The State v Peter Raima (1993] PNGLR 230, John Beng v The State (1977] PNGLR 115, David Kandakason v The State (1998) SC558, The State v Amoko–Amoko (1981] PNGLR 373, The State v John Kasaipwalova (1977) N80 and The State v Kindung (1996] PNGLR 355 referred to

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Kandakasi J: On 22 January 2001, the accused pleaded not guilty to one count of murder under s300(1)(a) of the Criminal Code (Ch262) (hereinafter "the Code"). That followed the State presenting an indictment against him on the same day alleging inter alia that the accused killed one Mika Gelong at the Bundi camp settlement here in Lae at a bout 3.00am on 9 October 1998.

Preliminary Issue

At the commencement of the trial, both Counsels informed the court that the State would call about three witnesses and tender other evidence by consent. I raised with both Counsels the appropriateness of evidence by consent and asked Counsel to look up the law on it and call evidence in accordance with that. I am grateful to both Counsels who have been able to do that.

From a quick perusal of some of the relevant cases on point, the following position becomes apparent:

1. An accused person is presumed innocent until proven guilty according to law (s37(4) of the Constitution) and he is entitled to a "fair hearing" (s37(3) of the Constitution) and is therefore entitle to a full protection of the law (s37(1) of the Constitution). That means a criminal trial must confirm to relevant statutory provisions and the underlying law of criminal procedure where the State always has the burden to prove the case against an accused person in conformity with the rules of evidence: see The State v Misari Warun (1988–89] PNGLR 327 at 328–332.

2. The best way to prove a case against an accused person which accords well with the right to a "fair hearing" within the meaning of s37(3) of Constitution is to call witnesses to give evidence under oath and be subjected to cross–examination by the accused person. Admitting into evidence written statements or affidavits by consent may leave unanswered or not clarified questions or points in the evidence. See The State v Misari Warun (1988–89] PNGLR 327 at 333 and The State v John Bill White (No 1) (1996] PNGLR 262 at 267. This eliminates the risk of the statement or affidavit not necessarily containing what its deponent or author is really saying and may be one that may not stand up under cross–examination. It also accords well with the fundament principle that "the best evidence must be given of which the nature of the court case permits": See The State v John Bill White (No 1) (1996] PNGLR 262 at 267.

3. There is however, nothing preventing the admission into evidence affidavits or statements pursuant to statutory provisions such as s102 of the District Courts Act (Ch40) or under s34, s35, and s36 of the Evidence Ac (Ch48) which permits that to be done (The State v Misari Warun (1988–89] PNGLR 327 at 333 and The State v John Bill White (No 1) (1996] PNGLR 262 at 267) and or with the consent of the parties: see Epeli Davinga v The State (1995] PNGLR 263 (a decision of the Supreme Court) at 266.

4. Admission of statements or affidavits by consent is permissible provided there is no doubt or a challenge to the facts in them; the facts of the case are uncontroverted; they are relevant (Epeli Davinga v The State (1995] PNGLR 263 at 266) and are admissible in form (The State v Peter Raima (1993] PNGLR 230 at 235–38) and their admission will not prejudice the accused and thus amount to an unfair trial (The State v Peter Raima (1993] PNGLR 230 and (Epeli Davinga v The State (1995] PNGLR 263 at 266).

5. If the deponents or the authors are readily available and can easily be called without causing substantial hardship and costs to the parties and a delay...