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State v Rain [1976] PGLawRp 647; [1976] PNGLR 43 (26 January 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 43 - The State v Rain�

[1976] PNGLR 43

N23

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

RAIN

Mount Hagen

Prentice DCJ

26 January 1976

CRIMINAL LAW - Evidence - Cross examination as to previous convictions - Imputations against State witnesses - Violence, fabrication, forgery, duress qua record of interview - Voir dire - Relevant considerations in exercising discretion to allow cross examination - Evidence Act 1975, s. 73 (b).

Section 73(b) of the Evidence Act 1975, provides: �A person charged with an offence and called as a witness under this Act shall not be asked or required to answer any question tending to show that he has committed or been convicted or been charged with, any offence other than that with which he is then charged or that he is of bad character unless:

N2>(b)����� he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or on the witnesses for the prosecution.�

On a voir-dire being conducted as to the admissibility of an alleged record of interview with an accused charged with breaking and entering, the accused made allegations of violence etc., against the interviewing police officers and the prosecution made application under s. 73(b) of the Evidence Act, 1975 to cross-examine the accused as to previous convictions.

Held

N1>(1)����� In making allegations of violence, fabrication, forgery and duress in relation to the record of interview, the conduct of the defence was alleging grave improprieties such as to amount to �imputations on the character of the prosecution witnesses� within the meaning of the section.

N1>(2)����� In determining whether the Court should exercise its discretion to allow the introduction of the cross-examination into the course of the trial:

N2>(a)����� the possible prejudicial effect of such an introduction should be weighed against the damage that could be considered to be effected to the prosecution�s case by the imputations; and

N2>(b)����� whether it might be unfair to the prosecution�s case to leave the prosecution witnesses under the imputations laid, while preventing the bringing out of any record on the part of the accused through his answers, should also be considered, Curwood v. The King [1944] HCA 40; (1944) 69 C.L.R. 561 referred to.

N1>(3)����� In view of the nature of the imputations made, and the circumstances of the case generally the cross-examination should be allowed.

Ruling on Admissibility of Evidence on Voir Dire

On a voir dire being conducted as to the admissibility of an alleged record of interview with an accused charged with breaking and entering, the accused made allegations of violence, fabrication, forgery and duress against the interviewing police officers and the prosecution made application under s. 73 (b) of the Evidence Act 1975, to cross-examine the accused at this stage as to previous convictions.

Counsel

B McDade for the State

CJP Russell for the accused

26 January 1976

PRENTICE DCJ:� An examination on the voir dire is being conducted as to the admissibility of an alleged record of interview with the accused. Initially it was sought to have the record rejected as involuntary, because it had been induced by actual violence, consisting of kicks by two police officers to the accused�s legs, and by punches by one of them to his neck. It was also sought to have it rejected as being taken in breach of the Judges� Rules.

All maltreatment has been denied. The accused is now giving evidence on oath. He has considerably extended the areas of the allegations of violence and he now states that the entire record of interview is a fabrication, that he continually denied all implication in the breaking and entering concerned, and that the record of interview taken was entirely made up by reference to the statement of facts given by an alleged accomplice. The accused has also pressed an allegation made in cross examination of the police by his counsel, that his signature was in effect forged (or violently contrived if you will, by the forced guidance of his hand) to a totally false document. This appeared to be a jury question and not one that should be decided on the voir dire, but at my suggestion the voir dire was concluded leaving open this matter.

The State Prosecutor has made application under s. 73 (b) of the Evidence Act 1975, which I am told has now been brought into effect, to cross examine the accused at this stage as to previous convictions. In my opinion the conduct of the defence does allege grave improprieties including not only breach (no doubt) of police regulations, but criminal offences by the police officers concerned. The improprieties I think, are clearly such as to amount to �imputations on the character of prosecution witnesses� within the meaning of the section. They arise in the conduct of the defence. The question remains as to whether I should exercise my discretion in the prosecution�s favour or in the accused�s favour against allowing the cross examination. I adjourned the court to consider the question.

I have now considered, in the time available to me, the judgments of the High Court of Australia in Curwood v. The King[xxix]¹�discussing the numerous cases on kindred sections, the annotations in Judge Carter�s volume on s. 618 (a) Queensland Criminal Code, and an article in 1961 Criminal Law Review by Edward Griew (at p. 143). It is, of course, exceptional that previous convictions should be introduced into the conduct of a trial, and I must weigh the possible prejudicial affect of such an introduction against the damage that could be considered to be effected to the prosecution�s case by the imputation.

I am not quite in the position of a Judge sitting with a jury, who may consider the question of the prejudicial effect outweighing the evidentiary value of the answers to the proposed questions � making his consideration in the absence of a jury, and after having heard the nature of the questions sought to be put.

I must also consider whether it might be unfair to the prosecution�s case to leave the prosecution witnesses under the imputations laid, while preventing the bringing out of any record on the part of the accused through his answers.

I consider that in view of the nature of the imputations made, and the circumstances of the case generally, I should exercise my discretion to allow the cross examination desired and I do so.

NOTE: The cross examination which was allowed then brought out that the accused had been previously convicted for an offence of breaking and entering a house and that he had also been convicted of escaping from lawful custody. At the conclusion of the voir dire on which I decided to allow the tender of record of interview I indicated that I thought, in the circumstances, that the convictions were not such that I should have any regard to them at all in deciding the admissibility of the record of interview. I pointed out that indeed the bringing out of those convictions might prove to be a double-edged sword, in that such convictions might well ground impatience in and improper behaviour by a police officer, in regard to such an accused.)

Ruled accordingly.

Solicitor for the State: L. W. Roberts-Smith, Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

[xxix][1944] HCA 40; (1944) 69 C.L.R. 561.