Minjipa, The State v [1977] PGNC 32; [1977] PNGLR 293 (9 September 1977)

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CRIMINAL LAW - Evidence - Cross-examination of State witnesses to put defence case desirable.

An accused was charged with the theft of K1,004, from a villager coffee buyer. From the State evidence it appeared that the money stolen had been placed on a bed in a bedroom normally shared with the accused, and in a house in which a drinking party was in progress, that the accused joined the party late in the day and following an altercation the accused smashed open the locked bedroom door, entered and shortly thereafter left with a jacket rolled up in a bundle and hugged to his chest with both hands. When accosted some time later the accused was alleged to have stated that he would return the money on Friday. The accused�s evidence was to the effect that he had not smashed the door down, did not share the particular bedroom, had not gone into the room, had not taken the money and had not promised to repay the money. The State witnesses were not cross-examined on the version of events on which the defence relied nor were they cross-examined as to their proper recollection of the incidents occurring on the occasion in question;

It is desirable that defence counsel open in cross-examination of State witnesses the version upon which the defence relies: if it is suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain.

Conversely, if the prosecution intends to ask the tribunal to disbelieve a witness, it is right and proper that the witness be challenged by cross-examination while in the witness box and it made plain that his evidence is not acceptable.

PRENTICE DCJ: The accused is charged with the theft of K1,004.00 from a villager coffee buyer (apparently his uncle), named Dokta.

On the evening of 28th May, 1977, Dokta and others including the accused, were present in Dokta�s house. A drinking party was in progress. By about 5.00 p.m. in the evening three cartons of beer had been �discussed�. A mere handful of men and women were present; and it seems that two of the men and the women were non-drinkers. It appears therefore that some of those present must have been very much under the influence of alcohol.

No claim of right is raised to the money concerned. The sole issue is whether it has been established beyond reasonable doubt that the accused took K1,004.00 from Dokta�s house that night. If he did, he has plainly stolen the money.

The State case is a simple one. It is that Dokta had come into the house, placed the sum of money in a bag on his bed in a windowless room, and locked the door. (This room was in a house which apparently had a living section in the middle (including a fire place), and bedrooms at either end.) Dokta�s bedroom was one that he shared with the accused normally. After the beer drinking party was nearly finished, the accused joined it. An altercation arose over his taking an older man�s drink. The accused was then called a rabisman. Upset thereby, he cried, and punched the door of Dokta�s room, pushing his weight against it. The door was smashed open (it was plywood) and the accused went into the room. He came out shortly afterwards with a jacket rolled up in a bundle and hugged to his chest with both hands. He walked through, and out of, the house. Prior to the door smashing, no-one had gone into Dokta�s room since it was locked with the money inside. No-one went into that room after the accused left clutching the bundled coat, until Dokta himself went inside and there found the money missing. He immediately informed the others. Next day a Sunday, Dokta challenged the accused saying �my money has gone � and I assume it could be you � because you entered the room�; and received the reply: �You will have to pay me compensation for calling me a rabisman before I return the money�. Dokta invited Ogadi to his house; but Ogadi did not go. On the Wednesday night Ogadi turned up and was given K12.00 by way of compensation for the insult to him, and Dokta again asked him to return the money. From the K12.00 � Ogadi returned K8.00; but did not return the K1,004.00. Ogadi said �I will give you the money on Friday. After you have sold your coffee to Sigmill Coffee on Friday, I�ll return the money�. The money was not forthcoming on the Friday, nor since.

The accused gave sworn evidence and stated that he did not go into Dokta�s room that night. That he shared a bedroom at the other end of the house with an old man named Eli. That he did punch a hole in Dokta�s bedroom door, but that the door was not forced open. That he went through into the other bedroom and was there handed the coat by Eli. That he did not take the money. That he did not promise to repay the money. He had previously denied taking the money when interviewed by the police.

If the State witnesses are believed and if I accept that Ogadi twice promised to return the money in the words I have quoted, then it seems to me to be established beyond reasonable doubt that those promises or statements necessarily amount to admissions by the accused that he had taken the K1,004.00, which together with the evidence as to his breaking into the room, coming out holding a clutched bundle, and the money thereafter being found to be missing � would prove to the necessary degree the offence as charged.

The cross-examination of Dokta was directed almost entirely towards establishing that the witness could not have seen accurately what was going on around the fireplace, that others besides Ogadi might have gone into Dokta�s room at the relevant time, that Dokta�s attention was not on the door of his room.

The complainant Dokta was not cross-examined to suggest that he was drunk and had no proper recollection of the incident. It was not suggested of him that he was incorrect in saying he shared the bedroom with Ogadi. It was not suggested of him that the door merely had a hole punched in it and was not actually forced open. It was not suggested to him that Ogadi did not go into Dokta�s bedroom. It was not suggested that he was lying in giving his evidence. It was not suggested to him that on neither occasion after the Saturday did Ogadi promise to return the K1,004.00 or say anything that could be taken as an admission that he took the money. It was not suggested that the bedroom to which Ogadi entered and from which he took his coat was at the other end of the house � being his and Eli�s room. Dokta was not cross-examined so as to suggest that he had animus against the accused.

Similarly the cross-examination of the witness Nande failed to suggest that that witness was lying or mistaken in saying that Ogadi found Dokta�s door open, went inside the room and came out clutching a bundled coat. Nor was it put to him that the accused merely punched a hole in the door and in fact went inside his own (another) bedroom and there picked up his coat. Again attention was directed towards opportunity for observation. It was not challenged that this witness had not been drinking that night.

Again the witness Kum, an old man who also stated he does not drink, was not questioned as to whether his account of Ogadi going into Dokta�s room was incorrect. It was not put to him that the door was not forced open � that Ogadi in fact went into and got his coat from the other bedroom.

Further, in examination in chief the accused was not asked as to the two conversations upon which the State relied as to admissions. It was not until the Prosecutor cross-examined him that any denial was made as to these two statements. Though, he did say in chief that he told the complainant �I didn�t take the money. Why should I take it?� � something else that was not put to Dokta in cross-examination. He swore that on a subsequent occasion he had denied taking the money.

The accused gave a record of interview on 7th June to the police in which he stated that when he came out of Dokta�s house on the night in question he was wearing a big jacket. That he had gone inside Eli�s room to get his coat or jacket. Asked in this Court by his counsel, �When you went into Eli�s room was it your coat that Eli borrowed � did you wear it out or carry it out?�; he replied �I carried it�. In stating this he is of course corroborating in fact what the State witnesses said and contradicting his previous statement.

Both in the Court and in his s. 103 statement in the District Court the accused stated that he was drunk on that night. In the District Court he said that he came drunk to Dokta�s house from another house and there in Dokta�s house drank another 5 bottles of beer.

I found myself impressed by the quiet demeanour of the State witnesses and the reserved manner in which they gave their evidence. No material has been put before the court by way of positive evidence from the accused or by way of cross-examination that shakes their testimony. I accept that on two occasions after the money �went missing�, the accused promised to return it, under such circumstances as to amount to an admission by him that he stole it. The circumstantial evidence against him was such as strongly to suggest the probability that he stole it. That the accused should deny taking the money is a most common factor of Melanesian evidence, where the facts are such as to show that the particular accused was not seen �in the act� to be committing the offence in question. I find myself convinced to the requisite degree that Ogadi stole the K1,004.00. I convict him accordingly.

Before concluding, I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit � if this course be taken. I draw counsel�s attention again to the old case of Browne v. Dunn[ccxci]¹�(reported in Cockle�s Cases & Statutes on Evidence in 11th ed. at p. 265) which sets out the duty of counsel in this regard as understood in the United Kingdom and makes comments as to the credibility of the opposing case where this course is not taken. The comments of Lord Herschell, Lord Morris, Lord Halsbury and Lord Bowen, with respect, appear to me to be of plain common sense suitable to and applicable in our courts. The case of R. v. Hart[ccxcii]²�illustrates the converse case � that if the prosecution intends to ask the tribunal to disbelieve a witness � it is right and proper that that witness be challenged by cross-examination while in the witness box and it made plain that his evidence is not accepted. In the latter case a question of fact as well as credit or credibility was involved. As pointed out in Browne v. Dunn[ccxciii]³, there are of course instances where the two cases are so plainly opposed and a witness so clearly lacking in credit, that cross-examination might be foregone.

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[ccxci][1894] 6 R. 67 H.L.

[ccxcii](1932) 23 Cr. App. R. 202.

[ccxciii][1894] 6 R. 67 H.L.

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National Court of Papua New Guinea

Minjipa, The State v [1977] PGNC 32; [1977] PNGLR 293 (9 September 1977)

Papua New Guinea Law Reports - 1977