Unreported Supreme Court Decisions
SC620
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
CRA 38 OF 1994
BETWEEN: MANALE MAX  MEWA
APPELLANT
AND: THE STATE
RESPONDENT
Waigani
Kapi DCJ Los Sevua JJ
29 February 1996
3 May 1996
10 May 1996
PRACTICE AND PROCEDURE – Statement on allocutus – Whether the truth or otherwise of the state should varified – No provision in law for this procedure.
PRACTICE AND PROCEDURE  - A Statement made by a co-accused on allocutus may be relevant to the innocence of the other accused – May be admitted on appeal as fresh evidence.
Counsel
D. Koeget for the Appellant
R.Auka for the Respondent
10 May 1996
KAPI DCJ LOS SEVUA JJ: Manale Max Mewa (hereinafter referred to as “the Appellant”) was charged together with two others, Aumari Ariki Korona and Napolean Paul Allan Jogiaba that on 11 may 1993 they stole from Bank of South Pacific - Waigani Branch, with threats of violence an amount of K181,095.79 the property of the said bank.
At the trial, the accused Napolean Paul Allan Jogiaba pleaded guilty and the appellant and Auamari Ai Ariki Korona pleaded not guilty. A trial was conducted.
The State case was that the accused Napolean Paul Allan Jogiaba and Auamari Ai Ariki Korona participated with four others who entered the bank and with the use of one real pistols held up the bank staff and stole the amount of money referred to the above.
The appellant was employed as a cashier with the bank at the time of the robbery. It is alleged that he assisted the others in stealing the money. After hearing the evidence, the trial judge convicted the appellant together  with the other accused, Auamari Ai Ariki Korona, of the robbery and confirmed the plea of guilty by Napolean Paul Allan Jogiaba.
It appears from the record that before counsel made submissions on mitigation, each of the accused made statements on allocutus. The appellant must have said  something raising his innocence with regard to the role he played in the robbery and receipt  of some of the money stolen. The statement of the appellant is not recorded but it prompted the trial judge to take a very unusual step which is recorded as follows:
“Napolean
Question by the Court-
Heard what Max says you told him at CIS?
Napoleon: That’s true.
Q.       Who was responsible for paying the money to Max Manale?
A.       I gave it to some friends to give to Max.
Q.       Had you spoken to Max before the robbery?
A.       No.
Q.       Why did you give him the money?
A.       Because I thought he saw me during the time of the robbery. I gave a parcel to my friends to give it to Max.”
This explaination seems  to suggest that the money he received was given to him by one of the offenders not because he participated in any conspiracy or plan to rob the bank but because the offender, Napoleon Paul Allan Jogiaba though the appellant who was in the bank at the time might have recognised him and that by giving some money he may not give evidence against him.
The trial judge took a very unusual step and questioned the co-accused Napoleon Paul Allen Jogiaba with regard to the statement made by the appellant. It is not clear why the trial judge took this action. He did not indicate why he did this. It appears that the co-accused supported the contention by the appellant. The trial judge had regard to this evidence and probably considered that it was relevant to the issue of the appellant’s innocence. However, he concluded in the following terms:                   
“I don’t believe I have the power to set the conviction aside.”
The appellant initially filed a notice of appeal in person. He was later granted legal aid by the Public Solicitor and a supplementary notice of appeal was filed on his behalf. The ground of appeal are as follows;
“3.      GROUNDS
The conviction was unsafe and unsatisfactory in that the-
(a)      There was no or insufficient evidence that the Appellant committed the crime as alleged by the State
(b)      The trial judge erred in convincing the Appellant of the crime in that there was no or insufficient evidence to support his finding that the Appellant was a principal offender to the crime.
(c)      The trial judge erred  in that he failed to set aside the conviction and directed a new trial after hearing a statement by the Appellant  on allocutus and evidence  called in support of his statement that cast reasonable doubt on his guilt”
IRREGULARITY
First, we wish to deal with the propriety of the trial judge having to call on Napol;ean Pual Jogiaba to either confirm or deny the statement made by the appellant on allocutus. We find that there is no provision in the law which require the trial judge to question the co-accused as to the truth or otherwise of the statement made by the appellant. The trial judge was not entitled to put these questioned. This procedural error should not be repeated in the future.
Nevertheless, the trial judge correctly ruled that this evidence did not affect the conviction. It was not part of the evidence before the trial judge when he was convicted the appellant.
When we heard this matter on the 29 February 1996, we considered that the statement made by the co-accused, Mr Napoleon Paul Allan Jogiaba, may be relevant to the innocence of the appellant and directed that counsel for the appellant should consider whether this piece of evidence could be put before us by way of fresh evidence. We adjourned the case to enable counsel for the appellant opportunity to investigate and consider the matter. We assume the hearing of this matter on 3 May 1996. Counsel for the appellant advised the Court that after obtaining instructions from Napoleon Paul Allan Jogiaba, he has given advise to the appellant that he would not make any application to call fresh evidence. In the final result, we would dismiss ground 3(c).
The two grounds of appeal that remain to be considered are set out in grounds 3 (a) and (b).
The evidence against the appellant was circumstantial. There was no direct evidence that he conspired or planned to commit the robbery with any of the people who were involved with the robbery.  
The evidence against the appellant consist of recovery of an amount of K4,600.00 which was found in a parcel at the appellant’s residence. In a record of interview conducted with the appellant on 17 May 1993, the appellant gave the following answers; 
“Q23.  Now that the Police came to know that you have received some share of the money that was robbed from the SP Bank Waigani, can you tell who did you actually plan and made arrangements to rob the SP Bank?
Ans.    I just know him by EBI from Highlands
Q24.   Can you tell me what you have told him and discuss with him?
Ans:    Sometimes at the end of last year I have applied for a loan of k400.00 to fix my electric wirings in my house but the loan was declined. Then I applied for a loan of K2,000.00 to pay for my Airfares to go home for three weeks holiday. But again this loan was declined. When two of my loans were declined I feel very bad. Then I find ways of harming the Bank, because I have been a old staff. Two weeks ago I remember coming from the Bank for lunch and I saw EBI standing at the front of the bank. Then spending lunch hour I told him about my personal feelings and discussed if he could rob the Bank. The he went away”.
He was further questioned:
Q38.   Who actually came to give the K4,600.00 cash your share?
Ans.    A hirecar from Granville Motel stopped few metres away from house, s I with two other of my friends went to check and one of the men asked if I am Max and I said yes, and he gave me a plastic K4,600.00”
Then in another question:
Q40    You seems  this driver and his crew to be strangers, but why did they come to  give you the money?
Ans.    I thought that was my share.”
Taking all this evidence into account, it was open to the trial judge to find the appellant guilty of the offence of robbery. We cannot find any error in the decision of the trial judge.
As the appellant has not appealed against the sentence of seven years, we would dismiss the appeal and confirm the sentence.