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Kiso v Manumanua [1981] PGNC 79; [1981] PNGLR 507; N359(M) (30 November 1981)

N359(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MADELINE KISO

V

ANGELA MANUMANUA

Waigani
Kearney DCJ

30 November 1981

CRIMINAL LAW - Evidence - Of defendant - Need not be given before other defence witnesses - If given after defence witnesses weight may be reduced - Constitution s. 37(4)(f).

CRIMINAL LAW - Evidence - Witnesses - Present in court - Not to be excluded from testifying - Weight of evidence may be reduced.

EVIDENCE - Admissibility - Witnesses present in court - Direction for witnesses to leave court - Not excluded from testifying - Weight of evidence may be reduced.

Although it is a general rule of practice that where a defendant wishes to give evidence on his own behalf, he should be called first: if he wishes to give his evidence after other defence witnesses he has a right to testify under s. 37(4)(f) of the Constitution and he must be heard, though the weight to be placed on his evidence may be reduced.
R. v. Smith (1968) 52 Crim. App. R. 224 adopted.

Although it is a general rule of practice that witnesses other than the parties remain out of the hearing of the court until they come to give their evidence, a witness who remains in court, even where witnesses have been told to leave, cannot be excluded from testifying for that reason though the weight to be placed on his evidence may be reduced.

Appeal.

This was an appeal against a conviction and sentence by the District Court, on a charge of "adultery" under s. 84(2) of the Native Regulations (Papua) 1939.

Counsel:

A. Amet, for the appellant.
J. Mainggu, amicus curia.

30 November 1981

KEARNEY DCJ: This is an appeal against a decision of the National Capital District Court given on 3rd September, 1981. The court found the appellant guilty of the offence described as "adultery" in s. 84(2) of the Native Regulations (Papua) 1939.

The informant, Angela Manumanua, is the wife of one William. By her information, Angela alleged that the appellant Madeline Kiso had had sexual intercourse with William, knowing that William was a married man. For an automatic citizen to do so, is to commit the offence, under s. 84(2). All three are automatic citizens.

The case came on before the District Court. The informant gave evidence. The defendant’s case was then opened. Mr. Mainggu, who appeared for the informant before the District Court, very properly informed this Court that counsel for the defendant intimated to the District Court that his client would not be testifying, but would call several witnesses. These defence witnesses were then called and testified. The defence then sought to call the defendant herself. The court record then states:

"Application by defence counsel for defendant to give evidence, was opposed by complainant. Defendant was in court throughout the trial."

The court then ruled that the defendant could not testify on her own behalf, and proceeded to convict her.

Before me, the appeal was argued on the merits on the ground that the evidence was insufficient to sustain the conviction. The fact that the defendant was not allowed to testify, did not come to light until towards the end of the argument. The magistrate refused to let her testify, for one of two possible reasons.

First, he may share the common belief that if a defendant does not testify before his own witnesses give their evidence, he loses his right to give evidence. That is not the law. A person charged with an offence has a right under the Constitution, s. 37(4)(f), to testify on his own behalf. This right is also recognized by s. 67(2) of the District Courts Act 1963. No rule of practice or law can destroy that right.

Normally, a defendant will give his evidence before calling any of his witnesses. This is to prevent the weight of his evidence being reduced, on the basis that if he has heard what his witnesses say, it may be said that he is tailoring his own evidence to fit what he has heard them testify to. To have his evidence reduced in weight is one thing; it is quite another to say that a defendant cannot testify at all, after his witnesses. The rule of practice in England is apparently stricter; see R. v. Smith1. I respectfully agree with the Court of Appeal’s comments in that case as to the general rule and practice in calling the defendant first. However, I do not think the practice can be elevated to a rule of law. With respect, in this country at least, I think it is for defence counsel to call his witnesses in the order he chooses and he cannot be compelled, if the defendant wishes to testify, to call the defendant first.

Second, it may be that the magistrate refused to let the defendant testify because, as he said, "defendant was in court throughout the trial". I have seen many cases where magistrates have refused to hear witnesses for that reason; another common belief.

Again, that is not the law. An informant and a defendant have a right to be present at all times during the hearing of their case. Other witnesses should, in general, remain out of the hearing of the court until they come in to give their evidence; see s. 70 of the Act. A magistrate may permit a witness to remain in court and listen to other witnesses, before he testifies; but usually a magistrate would not allow him to remain. Suppose a magistrate orders all the witnesses present in the court to go outside the court, until they are called, but by some mischance one of them in fact remains in court? The law is very clear that even in such a case the magistrate cannot refuse to hear that witness’ evidence. See Moore v. Lambeth County Court Registrar2. Of course, it may be that the magistrate would not give much weight to the evidence of such a witness. It would be open to the prosecution to comment on the fact that he had heard the other witnesses. But as I say, no witness can be prevented from testifying simply because he "was in court throughout the trial"; and certainly a defendant, who has a right to be there in court all the time, cannot be so prevented.

So here it was that the defendant was deprived of her Constitutional right to testify on her own behalf. By refusing to let her testify, the magistrate erred in law. It was an error which amounted to a substantial miscarriage of justice, in terms of s. 236(2) of the Act, because a defendant’s own evidence is clearly of great importance to his case.

Accordingly, the appeal against conviction must succeed. The appeal is allowed and the conviction is quashed. The case is remitted for hearing before a differently constituted District Court.

Appeal allowed, conviction quashed.

Case remitted for re-hearing.

_____________________________________

Solicitor for the appellant: A. Amet, Public Solicitor.