N954

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KOLE NAWA AND KUMBE YAKOLA

Mount Hagen
Woods J

11-12 February 1991
22 February 1991

EVIDENCE - Witnesses - Hostile witness - Prior inconsistent statement - Leave to introduce or cross-examine on - Discretion of court - Circumstances in which statement made - Relevant considerations - Possibility of intimidation - Leave refused - Evidence Act (Ch No 48), ss 22, 23.

The Evidence Act (Ch No 48), s 22, provides that a witness may be asked whether he made a prior inconsistent statement and s 23 provides that a witness may be cross-examined as to such statements made by him.

Held

(1) The right to examine and cross-examine a witness as to prior inconsistent statements under the Evidence Act, s 22 and s 23, is a discretionary one.

(2) In exercising the discretion to allow or disallow such examination or cross-examination, the court should ascertain whether the prior inconsistent statement was made and the circumstances surrounding the making having regard to the principles applied in relation to the admissibility of confessions and records of interview.

(3) Accordingly, leave to introduce or to cross-examine on a prior inconsistent statement should be refused where the earlier statement was made in an atmosphere of possible pressure or intimidation.

Cases Cited

R v Caracella [1958] VR 382; [1958] ALR 827.
R v Hunter [1956] VLR 31; [1955] ALR 786.

Ruling on Evidence

In the course of a trial on a charge of murder, the State sought to introduce and cross-examine on, a prior inconsistent statement made by a witness.

Counsel

D Mark, for the State.
D Poka, for the accused.
Cur adv vult

22 February 1991

WOODS J: I made my ruling herein on 12 February and I now publish my detailed reasons.

The accused Kole Nawa and Kumbe Yakola have been charged with the murder of one James Kanoli on 12 July 1991. The State’s case is that the accused and the deceased were together that day smoking marihuana and that the two accused attacked the deceased and killed him and then concealed the body in the bushes.

The State has brought a witness, Win Yako, to give evidence and this witness while stating that he was around that day and did see the accused and the deceased that day, he never saw anything and only knew of the death of the deceased the next day when the deceased’s wife asked him to help look for the deceased.

The State has produced a prior statement made by the witness in which he apparently states he was smoking marihuana with the two accused and the deceased that day and saw them kill the deceased and conceal the body. The witness while admitting he made the statement denies its truth, alleging that he was forced to make the statement. The State has sought to cross-examine the witness on the basis of this prior statement and relies on the Evidence Act (Ch No 48), s 22 and s 23. This, in effect, is similar to the common law procedure relating to a hostile witness.

These sections provide as follows:

"22. Contradictory statements of witness

A witness:

(a) on his examination in chief; or

(b) under cross-examination may be asked in any legal proceedings whether he has made a statement relative to the subject matter of the proceedings that was inconsistent with his present testimony (the circumstances of the alleged statement being referred to sufficiently to designate the particular occasion), and if he does not admit that he made the statement proof may be given that he did in fact make it.

23. Cross-examination as to previous statements

(i) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but if it is intended to contradict the witness his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.

(ii) The court may at any time during the proceedings require the writing to be produced for its inspection, and may make such use of the writing for the purposes of the proceedings as it thinks fit."

I have read s 22 and s 23 to be matters in the discretion of the court and I have therefore heard evidence on the circumstances surrounding the prior statements.

The witness himself said that he had been arrested and placed in the police cells and "at the Police Station I was taken out of the cells to the CID office. I was frightened and told lies, there were the deceased’s brother and police and they forced me to say things and I was afraid and I told stories". He further said "when I was in CID office the brother of the deceased promised me they would give me land and coffee and 3 pigs and K2000 money and told me to say to the Police that Kumbe and Kole killed James and that is why I said to Police". He further said that there were two brothers of the deceased in the CID office when he made the statement and a lot more relatives were outside.

I have perused but not read the statement supposedly made by the witness. It is typed in English and merely signed with an X by the witness but the attestation has no certification. The witness has given his evidence in court in Plestok and I am satisfied he does not know how to read and write English.

The investigating officer gave evidence of the circumstances surrounding the statement and has revealed that the witness made two statements. The first statement was made following his arrest and the detention in the police cells. He had been arrested because the officers suspected him because he had been spreading rumours that he had seen the accused killing the deceased and he had left Hagen immediately after the killing for his home area, Pangia, in the Southern Highlands. The officer confirmed that he was brought from the cells and made a statement that he had seen the accused kill the deceased. He also states that the relatives of the deceased were outside the CID office at the time. The witness was then released from custody.

The officer then states that a month later the witness returned to the police station with the relatives of the deceased and said he wished to make a new statement as he had left some things out of the first statement. He then made a new statement and asked that the first statement be torn up, which the officer did. The new statement was given in Pidgin and the officer took it down in English onto the typewriter. The brother of the deceased and the widow of the deceased were in the CID office as this second statement was made and other relatives were outside. The officer states he was not aware of any threats or promises made to the witness to make the statement.

The State therefore is seeking under s 22 and s 23 to cross-examine the witness on the statement made by him in what can only be regarded as rather unusual circumstances, namely, following his own arrest and detention in the cells for his possible implication in the murder and whilst relatives of the deceased were with him in the room.

I find that s 22 and s 23 do not give the State the absolute right to examine and cross-examine but such right is at the discretion of the Court.

I have been referred to cases where the question of the cross-examination of a hostile witness has been considered but those cases seem to be concerned with statements that the witness had indicated he was not going to tell the truth and to that the judge’s discretion must be principally, if not wholly, guided by the witness’s behaviour and language in the witness box: see R v Hunter [1956] VLR 31, the Full Court of the Supreme Court of Victoria. In the case R v Caracella [1958] VR 382, Gavan Duffy J noted that the statements made by the witnesses to the police were voluntary and further noted the hostility of the witnesses to the prosecution. All cases refer to the use of a "voir dire" procedure in jury trials to determine the status of the witness.

I am satisfied therefore that I can and should inquire into not just whether a prior inconsistent statement has been made but also into the circumstances surrounding that statement. Further I can apply the analogy of the circumstances surrounding confessions and records of interview. I find that the circumstances here of being held in the cells on suspicion himself, being taken from the cells and making a statement when relatives of the deceased were known to be around the building and then being released and then making the second statement in the presence of relatives of the deceased is a highly irregular procedure. I am not concerned with the truth of the statement, that is a matter that comes into consideration after the witness is cross-examined and the statement is allowed in as evidence; here I am concerned as to whether I should allow it to be used under s 22 and s 23 of the Evidence Act.

There is no question of demeanour of the witness here, there is no suggestion of him refusing to tell the truth. It is merely inconsistent statements where the earlier statement has, I find, been made in an atmosphere of possible pressure or intimidation. For this reason I exercise my discretion to refuse leave to the State to introduce the prior statement or to cross-examine the witness on the basis of that prior statement.

Following the ruling the State presented no further evidence and the accused were acquitted.

Leave to cross-examine refused

___________________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendants: Kopunye Lawyers.