Papua New Guinea Law Reports - 1978
[1978] PNGLR 119
N134
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MANASSEH VOETO
Lae
Wilson J
12-14 April 1978
18 April 1978
24 April 1978
CRIMINAL LAW - Evidence - Cross examination - Cross examination of witnesses to put adverse case.
In criminal proceedings, if it is desired to impeach the credit of a witness on any particular topic or his evidence generally, he should be cross-examined about that topic or about any matter on which adverse evidence will be called, so as to give him an opportunity to make any explanation open to him, unless he has had ample notice of the matter beforehand, or unless, perhaps, his story is patently incredible.
Browne v. Dunn (1894) 6 R. 67 (H.L.); The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293 and The State v. Saka Varimo [1978] P.N.G.L.R. 62 followed and applied.
Trial
This was the trial of an accused on a charge of undue influence (in obstructing the free exercise of the franchise at the National Elections).
Counsel
G. J A. Lucas, for the State.
J B. Avery, for the accused.
Cur. adv. vult.
24 April 1978
WILSON J: The accused, Manasseh Voeto, is charged with “undue influence”. Particulars of the offence alleged against him are that on 14th May, 1977 at Menyamya he, by fraud, obstructed the free exercise of the franchise at the National Elections to be held in June and July 1977 by one Sagapana Amjongguyo, an elector for the said electorate, by telling him that he would have to pay a fine of K400 if he did not vote for the accused.
The prosecution case, in summary, was that the accused, who was the former Member for the Menyamya Open Electorate in the National Parliament and who was a candidate in the 1977 election, convened and hosted an election meeting or party at his house on the 14th May, 1977, some few weeks before the elections. At that meeting, to which he had invited leaders from all over the electorate, he provided the people with food and gave them an opportunity to speak about problems in their areas. It was alleged that during the meeting a certain amount of electioneering took place and that the accused, in a speech, threatened the people with having to pay fines and prison if they did not vote for him. It was further alleged that the effect of such talk on the people, particularly the more impressionable people from the more backward areas, would be (and was) to make them feel “very suppressed” (to adopt the words of the District Officer in charge at the time), i.e. scared and worried, with the obvious effect that, having heard such threats, they would feel under some compulsion to vote for the accused. It was contended not only that such threats were designed and likely to obstruct the free exercise of the franchise at the election of the electors (and, in particular, on the man Sagapana Amjongguyo (hereinafter referred to as “Sagapana” identified in the indictment) but also that such threats did obstruct him.
The defence case, also in summary, was that the meeting was called to discuss the problems in the area, that far from it being an election meeting or election party, electioneering or talk of the pending elections was discouraged. It was denied that the accused handed out election pamphlets with his photograph on them. The accused denied making the alleged threats. It was suggested that the four main State witnesses were lying and that one of the four main State witnesses, Kipa, was responsible for making the false allegations against the accused because he was from Umba, the area from where Mr. Neville Bourne, another candidate at the elections, comes and that he (Kipa) was a Bourne supporter and therefore wanting to help Mr. Bourne by making trouble for the accused. Another ground of defence raised somewhat late in the trial (and put forward in the alternative) was that the four main State witnesses had been mistaken in what they heard the accused say; the accused said that he did speak at the meeting of fines and prison, but that he did so in the context of discouraging talk of the elections; he said that, if it was discovered that he talked about elections, he could be fined K200 or even go to prison.
Before I proceed to deal with the charge against the accused and the several alternative verdicts that are open to me, there are a number of general observations I should make about my function as a judge of the facts in this jurisdiction and about the standard or degree of proof which is required to enable a conviction to be sustained....
THE IMPEACHMENT OF THE CREDIT OF A WITNESS
The principle is well established in this court and elsewhere that, if it is desired to impeach the credit of a witness on any particular topic or his evidence generally, he should be cross-examined about that topic or about any matter on which adverse evidence will be called, so as to give him a chance to make any explanation open to him, unless he has had ample notice of the matter beforehand or unless, perhaps, his story is patently incredible.
I apply the rule in Browne v. Dunn[ccxxvi]1 and follow The State v. Ogadi Minjipa[ccxxvii]2 and The State v. Saka Varimo[ccxxviii]3. The two last-mentioned decisions are those of the present Chief Justice. In Thomas v. Van Den Yssel[ccxxix]4 Bray C.J stated the principle in these words:
“... if it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at p. 70, it is ‘absolutely essential to the proper conduct of a cause’.”
The other two members of the Full Court of the Supreme Court of South Australia concurred with the judgment of Bray C.J
I again mention, to follow once more what judges of this court have said many times, that a defence case is not assisted if the accused’s version is not put to the State witnesses in cross-examination. It should be done at the first available opportunity. Without in any way qualifying the criminal onus of proof, it may be said that, if the Court is to be persuaded that State witnesses are lying or mistaken or inaccurate in their recollection, then it is generally advisable that they should immediately be questioned to that effect and given an opportunity to explain.
Except to the extent as is mentioned below, I prefer to say nothing at this time about the professional duty of defence counsel in this area. What must be said is that little credence may be attached to an accused’s story if the course is adopted of keeping the defence case a secret until the accused gives his evidence or of postponing cross-examination for tactical or other reasons.
The principle to which I have been referring illustrates an obvious rule of justice. The reasons for the principle are obviously that the witness ought to have an early opportunity to give what explanation he can of the matter in question and that he should not be disbelieved, nor should any adverse inferences be drawn against him, because of other evidence relating to the topic or which he has been unable to comment upon reasonably promptly or at all.
In this case I drew the attention of counsel to what I characterized as either an oversight or something a little more sinister than that. I did so as soon as the omission became apparent, viz. at the end of the examination-in-chief of the accused. It is to be noted that, notwithstanding the fact that the defence was then put on notice of the problem with which the abovementioned cases deal, no application was then made to have recalled for further cross-examination any of the State witnesses who gave evidence as to what happened at the meeting on the 14th May, 1977. If such an application had been made and refused, or if for any reason it was impracticable for any of those witnesses to be recalled, the matter would stand differently. There was no reason to suppose that such an application would not have been granted if it had been made. Indeed, my statement to counsel at the time, besides expressing my feelings (which incidentally I characterized variously as feelings of annoyance or disappointment or criticism at the course the trial had in this respect taken), must have put counsel on notice that the problem to which I was alluding might yet be substantially overcome by some action on his part. I was, in effect, inviting such an application to be made. None of these witnesses, incidentally, had been released from further attending at this trial and all of them were still available to give further evidence (if required).
In this case, after the last of the defence witnesses had been called an application was made to have the State witnesses recalled for further cross-examination and leave was granted. The problem was thereby substantially but not completely overcome.
I do not, of course, seek to criticize further either the original decision not to cross-examine the State witnesses in question in the manner referred to or the decision not to make application to have the State witnesses in question recalled for further cross-examination until the last of the defence witnesses had been called. Advocacy involves a continual series of choices and the factors governing the exercise of any particular choice are not known to the court; and it is not for the court to comment upon it any more than I have done. But once such decisions are made then, subject to obvious exceptions in appropriate cases, the decisions are final and the consequences of such decisions may (but not necessarily must) follow. In this case I have felt it inappropriate (and it might have been unfair) to penalise this accused on account of what happened at this trial. I have therefore not allowed the conduct of the accused’s counsel in this case to affect the credence to be attached to the accused’s story. Such may not be the case if, in a future trial, that trial were to take the same course as this one did.
[His Honour then dealt with the charge against the accused, concluding:]
I am satisfied that the accused as an election candidate threatened his people with fines and jail. I therefore find the accused guilty of “attempted undue influence”. He will be convicted of that crime.
Verdict: guilty of attempted undue influence.
Solicitor for the State: K. B. Egan, Public Prosecutor.
Solicitor for the accused: M. Kapi, Public Solicitor.

[ccxxvi](1893) 6 R. 67 (H.L.).
[ccxxvii][1977] P.N.G.L.R. 293.
[ccxxviii][1978] P.N.G.L.R. 62.
[ccxxix](1976) 14 S.A.S.R. 205 at 206.