[1973] PNGLR 704

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

KOR GABRIL AND OTHERS

Mount Hagen
Wilson AJ

26-28 September 1973
1-3 October 1973

CRIMINAL LAW - Procedure - Unsworn statement from the dock - Unsworn statement permitted - Evidence Act 1934-1964, s. 6[dccxlii]1 - Criminal Code (Queensland adopted) s. 619.

During the course of a murder trial three accused elected to make an unsworn statement from the dock the right to do which was challenged by the Crown.

Held

(i)       The right to make an unsworn statement which existed at common law was adopted into New Guinea by s. 16 of the Laws Repeal and Adopting Ordinance 1921-1959. No statutory enactment in New Guinea recognizes the existence of such a right although s. 619 of the Criminal Code, at most, recognizes by implication the continuing existence of a qualified or conditional right. However this is not an enabling section and only seeks to regulate the rights of counsel.

(ii)      Section 6 (5) of the Evidence Act 1934-1964 is limited to the situation where an accused person elects to give evidence as a witness in his own defence. The section does not have any application to the general right of making unsworn statements.

Trial

Three accused were indicted for wilful murder. At the close of the Crown’s case, defence counsel intimated that his clients elected to make an unsworn statement from the dock. Counsel for the Crown submitted that in New Guinea no such right exists as a consequence of any statute and in so far as any right may have previously existed by virtue of the adoption by New Guinea of the common law, that right had been expressly removed by the enactment of s. 6 (5) of the Evidence Act 1934-1964. The case is reported on the ruling only.

Counsel

L. Roberts-Smith and G. Wall, for the Crown.
W. Andrew, for the accused.
Cur. adv. vult.

3 October 1973

WILSON AJ: The three accused, members of the Munjiga tribe, stand charged on indictment with the wilful murder of one Rur Wani, an old man and member of the neighbouring Kolbilga tribe.
The case alleged against the three accused is that the Munjiga and the Kolbilga tribes, which live adjacent to one another but on opposite sides of a river about 12 miles from Mount Hagen in the Western Highlands, had been opposing clans for many years and, in years gone by, used to fight one another. In more recent times disagreements had largely been confined to disputes and litigation over land. Early in 1973 a pig belonging to the Kolbilga tribe was found to be missing. The Munjigas were suspected of having stolen it. A meeting was thereupon arranged to be held on Sunday, 4th February, 1973, in a flat garden area near Nigints. Representatives of the two tribes attended with a view to negotiating for the payment of compensation. One of the representatives of the Kolbilga clan was the deceased. As he was sitting on the ground facing his opposite numbers in the negotiations, there was rustling in some bushes behind him, and he was thereupon attacked and brutally killed, allegedly by the three accused men. It was alleged by the Crown that the first of the attackers was Kor who, having thrown a spear at the deceased and having missed him, struck the deceased on the back of the neck with an axe. Immediately behind Kor was Piam who rushed forward and struck the deceased on the left side of the face with an axe. Following that, Dots struck the deceased across the left side of the trunk causing some internal organs to spill out. Soon after this brutal attack the deceased died of the injuries he had sustained. A tribal fight between the two clans erupted after the deceased’s death became known.

The trial of the three accused commenced on Wednesday, 26th September, 1973, and continued for 4 hearing days. Counsel for the Crown was Mr. L. Roberts-Smith and counsel for the three accused was Mr. W. Andrew.

The Crown case comprised the evidence of eleven witnesses, some photographs of the deceased’s body and the place where he was killed, which were tendered in evidence, and some records of interview, which likewise were tendered. The witnesses included two men who claimed to be fellow negotiators with the deceased and who claimed to have been eye-witnesses to the killing and to be able to identify the attackers. Other witnesses included two policemen who allegedly heard one of the accused shortly after the incident make a statement in the nature of an admission, a police sub-inspector who interrogated each of the three accused on two occasions, four witnesses who purported to negative the alibis of two of the accused, and a doctor who testified as to the injuries the deceased received and the cause of death.

At the close of the case for the Crown, defence counsel intimated that his clients elected to make an unsworn statement from the dock. Counsel for the Crown thereupon challenged the right of the three accused men so to do. He submitted that in New Guinea no right exists as a consequence of any statutory enactment. In so far as any right may have previously existed by virtue of the adoption by New Guinea of the common law, that right, so it was further submitted, had been expressly removed by the enactment of s. 6 (5) of the Evidence Ordinance, 1934-1964.

The submissions of counsel for the Crown amounted, as he conceded, to a challenge to a long-standing practice in New Guinea of allowing accused persons to make unsworn statements at their trials upon indictable offences, or, as counsel for the accused put it, “an amazing departure from normal practice”.

The implications of a ruling adverse to these three accused would be far-reaching. The potential prejudice to these three accused could be great; in so far as any decision of mine is of persuasive authority, there could be prejudice to other persons charged in the future with criminal offences and tried in the Supreme Court. For these reasons it is necessary that some consideration be given to the question of whether or not a right has ever existed in this country for an accused person to make an unsworn statement at his trial. Notwithstanding the fact that counsel for the Crown has not argued that a common law right never existed, it is necessary that such consideration be given to this preliminary question, before dealing with the submissions that were addressed to me in court.

When New Guinea adopted the common law by s. 16 of the Laws Repeal and Adopting Ordinance, 1921-1959, accused persons inherited thereby such rights and privileges as the common law granted them. One such right was the right to make an unsworn statement. The history of how accused persons came to have such a right is interesting and may well have stemmed originally from a desire by courts to give merciful consideration to an accused. That history is referred to in detail in Reg. v. Stuart[dccxliii]2. It is connected with the right of an accused person to be represented by counsel. The custom of allowing an accused person to make an unsworn statement from the dock in all criminal cases whether he was represented by counsel or not became recognized at least after 1882. Even after legislation was enacted permitting an accused to give evidence on oath, something which had not previously been permitted, the custom as sanctioned by the common law continued. In many jurisdictions legislation was enacted expressly providing that the right of the person charged to make a statement without being sworn shall not be affected. Such legislation exists in each State of Australia and is contained in the Evidence Act or equivalent Act in each respective State. The provision in s. 618 of the Criminal Code (Queensland) is expressed somewhat curiously in terms suggesting that the right in that State is subject to the court granting the accused leave to make an unsworn statement.

I agree with counsel for the Crown that no statutory enactment in New Guinea expressly recognizes the existence of such a right. Although s. 619 of the Criminal Code (Queensland, as adopted for New Guinea) states:

“When an accused person, being defended by counsel, is allowed by the court to make a statement to the jury, the counsel for the Crown is entitled to the same right of reply as if evidence had been adduced for that accused person.”

that section, at most, recognizes by implication the continuing existence of a qualified or conditional right. That section is not an enabling section and only seeks to regulate the rights of reply of counsel.

Therefore, I am of the opinion that, in so far as such a right exists in New Guinea, it does so on account of the common law.

With reference to the argument put to me by counsel for the Crown that any right previously existing (and I have held that a common law right has existed previously) has been removed by virtue of s. 6 (5) of the Evidence Ordinance 1934-1964, that section is not as wide as counsel contends. That section is limited to the situation where an accused person elects to give evidence (the emphasis is mine) as a witness in his own defence i.e. in exercise of the right which is expressly recognized by sub-s. (1) of s. 6. Section 6 directs that an accused person so electing to give evidence shall:

(a)      be subject to cross examination even if it would tend to incriminate him as to the offence charged (s. 6 (3));

(b)      be subject to cross examination even if it would tend to show that he has committed or been convicted of or been charged with another offence or other offences or that he is of bad character, in certain specified circumstances (s. 6 (4)); and

(c)      give his evidence from the witness box, unless otherwise ordered by the court (s. 6 (5)).

This section is intended to regulate the manner in which the evidence is given and to ensure that the accused person is, subject only to matters of fairness and justice, in the same position as an ordinary witness giving evidence. The proviso to sub-s. (5) contained in the word “unless otherwise ordered by the court” gives the court a discretion to permit the accused to give his evidence from some place other than the witness box in the same way as ordinary witnesses (whose manner of giving evidence is not regulated by statutory enactment) may be given such permission, to give their evidence from outside the witness box. The kind of situation that is obviously envisaged is where the witness needs to leave the witness box for the purpose of demonstrating something, or where the witness is too ill to come to court at all and a court is constituted at his bedside, or where the witness, although in court, is too infirm to walk to the witness box without pain, or where he cannot be easily restrained from exhibiting violence in the witness box. In relation to the last-mentioned two examples, see R. v. Symonds[dccxliv]3. For the proviso not to have been incorporated into the sub-section, the accused, when adopting the role of witness, could conceivably have been in a disadvantaged position in comparison with an ordinary witness and thereby prejudiced. Indeed, in the event of the type of situation arising as is referred to in the abovementioned examples, an accused person desirous of giving evidence as a witness might be prevented by circumstances from giving his evidence at all but for the discretion which the proviso recognizes and the exercise of which the accused person may seek.

Had the legislature intended to remove or abolish the right of an accused person to make an unsworn statement, it would have done so explicitly. In so far as the wording of s. 6 (5) is capable of precise interpretation, attention is drawn to the fact that the situation in which the judicial discretion referred to therein is called upon to be exercised is stated to be when an accused person is “called as a witness”. It is not without significance that counsel for the three accused men in this case, consistent with a long-standing practice, has not purported to call the three accused men or any of them “as witnesses” but rather has purported (deliberately, I suspect) to intimate that they “having been advised of their rights, elect to make statements from the dock” (I have used counsel’s very words). I rule that s. 6 does not have any application to the making of unsworn statements.

During argument my attention was drawn to a ruling of Robson AJ on a similar submission of the Crown in a recent unreported case of Reg. v. Pakuk Kendem[dccxlv]4. I am informed by counsel that the learned acting judge ruled that an accused person has a right to make an unsworn statement. I was also told that a similar argument was put recently to Prentice J in a case to which neither counsel could give me a reference. Whilst I am grateful to counsel for doing their best during these circuit sittings to acquaint me with any relevant authorities, I am unable to gain any assistance from either of the two cases mentioned for the purposes of reaching a decision in this case because I have not had the benefit of acquainting myself with the reasons given by their Honours for any rulings made by them, if indeed any reasons were given. I mention these cases in this ruling for the sake of the record, in case my ruling should be challenged on appeal or in case this matter should be raised again in any subsequent trial in New Guinea.

It is irrelevant for the purposes of this ruling to consider whether, from the point of view of the proper administration of justice, any useful purpose is served by retaining the right of an accused person to make an unsworn statement. I am aware that in some jurisdictions the right has been abolished by statute. I am also aware of strong moves that are currently being made in the United Kingdom against strong opposition to abolish the right in that country. Be that as it may, my task is to make a ruling as to what the law in New Guinea is at this time, and not to postulate what I think the law ought to be.

I was invited by counsel for the Crown to state a case to the Full Court. I see no good reason for doing so.

I rule that the three accused men may make statements from the dock.

Ruled accordingly.

Solicitor for the Crown: P. J Clay, Crown Solicitor.
Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[dccxlii]Section 619 of the Criminal Code (Queensland adopted) provides that:

“When an accused person, being defended by Counsel, is allowed by the court to make a statement to the jury, then counsel for the Crown is entitled to the same right of reply as if evidence had been adduced for that accused person.”

[dccxliii][1959] SASR. 144.
[dccxliv](1924), 18 Cr. App. R. 100.
[dccxlv]Unreported judgment of Robson AJ, August 1973.