The State v Joseph Tapa [1978] PNGLR 134

• Jurisdiction: Papua New Guinea
• Judge: Pritchard J
• Judgment Date: 10 May 1978
• Citation: [1978] PNGLR 134
• Court: National Court
• Year: 1978
• Judgement Number: N140

Full Title: The State v Joseph Tapa [1978] PNGLR 134

National Court: Pritchard J

Judgment Delivered: 10 May 1978

1 Criminal law—accomplices—corroboration—rule of law concerning direction to be given to jury inapplicable in PNG—question of weight of evidence only—whether appropriate and whether rule that one accomplice cannot corroborate another appropriate in PNG discussed—Constitution Sch2.2(1)

CRIMINAL LAW—Evidence—Corroboration—Accomplices—Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice—Rule inapplicable and inappropriate to Papua New Guinea—Question one of weight of evidence only—Corroboration of one accomplice by another permissible—Principles to be applied generally—Constitution of the Independent State of Papua New Guinea Sch2.2(1) and Sch2.3(1).

EVIDENCE—Corroboration—Accomplices—Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice—Rule inapplicable and inappropriate to Papua New Guinea—Question one of weight of evidence only—Corroboration of one accomplice by another permissible—Principles to be applied generally—Constitution of the Independent State of Papua New Guinea Sch2.2(1) and Sch2.3(1).

On a charge of breaking, entering and stealing the only evidence implicating the accused in the crime was evidence, not independently corroborated, of two alleged accomplices both of whom had pleaded guilty to the charge before another judge and had been sentenced:

Held:

(1) The common law rule of practice requiring a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice is inapplicable and inappropriate to the circumstances of Papua New Guinea.

The State v Nataemo Wanu [1977] PNGLR 152; McNee v Kay [1953] VLR 520; and Davies v DPP [1954] AC 378 not followed.

(2) Where a case against an accused rests solely on the uncorroborated evidence of an accomplice, the onus of proof being that the charge must be proved beyond reasonable doubt, the question becomes one of what weight is to be attached to the uncorroborated evidence.

(3) On the evidence there was corroboration present, albeit circumstantial, which could be relied on.

R v Baskerville [1916] 2 KB 658 at 667 referred to.

(4) One accomplice may corroborate another; an accomplice being one of a class of witness whose testimony for a variety of reasons, must be closely scrutinized before being accepted.

DPP v Kilbourne [1973] AC 729; Boardman v DPP [1974] 3 All ER 887; R v Scarrott [1978] 1 All ER 672; R v Rance and Herron (1975) 62 Cr App R 118, and Halsbury's Laws of England 4th ed. p. 272 referred to.

(5) The principles to be applied in Papua New Guinea when considering the evidence of accomplices should be:

(i) An accomplice is an example of what is called a "suspect" witness, as he may be motivated to tell lies about an accused person who is charged in connection with the offence of which he himself is guilty. His reason for telling lies may be:

(a) He believes he will receive a less severe penalty by putting the blame onto someone else.

(b) He believes he will receive a less severe penalty by appearing repentant and co–operative with the police.

(c) He may resent being caught and out of spite tries to blame another whose connection with the crime was only minimal or who may have only been innocently involved.

(ii) Because an accomplice is a "suspect" witness it is desirable that there be independent corroboration of his evidence.

(iii) If independent corroboration is not available a court can convict an accused person on the uncorroborated evidence of an accomplice if, having considered the possibility that he may be giving false evidence for any of the above or other reasons, it is satisfied beyond reasonable doubt his evidence of the accused's guilt is true.

(iv) If independent corroboration is not available and, because an accomplice is a "suspect" witness, the court has some doubt about the truth of his evidence, the evidence of another accomplice may be used in corroboration if, having considered the possibility that he too may be giving false evidence for any of the same reasons mentioned above and having considered also the possibility that the accomplices may have "got their heads together" to concoct such evidence, the court is satisfied on the totality of the accomplices' evidence the accused's guilt is proved beyond reasonable doubt.

(v) It is not necessary that a court should specify in giving its decision that it has followed the detail of these rules but from a practical point of view, eg to avoid unnecessary appeals, it is desirable that it do so.

(6) A verdict of guilty as charged should be entered.

Trial.

This was the trial of an accused on a charge of breaking, entering and stealing contrary to s410(a) of the Criminal Code, on which the only evidence implicating the accused was the evidence which was not independently corroborated of two alleged accomplices who had already pleaded guilty to the same charge before another judge and had been sentenced.

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Pritchard J: In this matter the accused has been charged with breaking, entering and stealing K5,497 plus a quantity of coffee, tea, milk and sugar from the office of Hornibrook Constructions Pty Ltd (hereinafter called "the Company") under s410(a) of the Criminal Code Act. For the purposes of arraignment, I was informed by Mr Karczewski, the State Prosecutor, that it was alleged that in the early hours of the morning of 15 December some 12 men broke into the office of the company, broke through the door of the strongroom and therein broke two padlocks on the company safe and from it stole the money and property charged. It was not alleged that the accused was present at the time, the allegations against him personally being that he was the Assistant Paymaster of the company and either aided the principal offenders in the commission of the crime thus becoming a principal offender himself by virtue of s7(c) of the Code and in addition, or in the alternative, counselled or procured the principal offenders to commit the offence, becoming a principal offender by virtue of s7(d) of the Code.

The factual allegations were that the accused suggested to one David Saura, one of the principal offenders, that the crime should be committed and advised him of how to effect it by telling him where the safe was physically located within the building, how it was secured, what money would be found in it on the night he suggested the theft take place and what section of the building was the best to break into.

These allegations were put to the accused on his arraignment and he pleaded not guilty. In his opening Mr Karczewski conceded that the case against the accused depended upon the evidence of accomplices, the vital witnesses being David Saura, and the other, less important, one Pala Vagi, both of whom had pleaded guilty to this offence before another judge of this Court and been sentenced to two years eleven months imprisonment.

The first witness was Mr Ivor Player, an accountant with Hornibrooks at their premises at Spring Garden Road, Waigani. He said the accused had been employed by the company in its pay office on two occasions since 1974 and during the second period was promoted to Assistant Paymaster. On the night of 15th December Mr Player obtained the cash–box containing a payroll for the company's employees on the Hiritano Highway from the paymistress and locked it in the safe at 4.30 pm The company's main payroll was made up and paid on the day the money was obtained from the bank but the Hiritano payroll had to be made up and kept overnight as it was taken down to the worksite early on payday mornings. The payroll amounted to K4,321.53. Also in the safe were a number of other cash–boxes, containing a float for casual workers, petty–cash, money for employees short paid, and a foreign exchange float in Australian dollars for the use of the company's directors. The total amount in the safe was K5,497. Mr Player said he locked the two padlocks which secured the safe with his keys, the only other keys being those held by the Company Secretary. He also locked the strongroom door, which was fitted with a deadlock. He returned about 10 pm that night to take home two employees who were working on a computer input and at that time checked the strongroom door to see that it was secure.

The next morning when Mr Player arrived at work, the staff were all waiting outside. The break and enter had taken place. He went inside the main office and saw the strongroom door had been jammed open. An adjoining door had also been broken. In the strongroom the padlocks had been snapped from the safe and the various cash–boxes were missing. At the other end of the building a...