Papua New Guinea Law Reports - 1981
[1981] PNGLR 498
SC216
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
PAULUS PAWA
V
THE STATE
Waigani
Kearney DCJ Andrew J Kapi J
2 October 1981
27 November 1981
CRIMINAL LAW - Evidence - Burden of proof - Circumstantial evidence - Inferences to be drawn - Question of fact - Relationship of inferences to finding of guilt - Overall view of case.
CRIMINAL LAW - Evidence - Failure of accused to testify - Inferences available and weight thereof - Inferences determined by common sense.
When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
Barca v. The Queen (1975) 133 C.L.R. 82, at p. 104; 50 A.L.J.R. 108 at p. 117 adopted and applied.
The State v. Tom Morris [1981] P.N.G.L.R. 493 affirmed.
Where an accused person fails to give evidence or to call witness to support his case the court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified.
Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:
(1)      The failure of an accused is not an admission of guilt and no inference of guilt may be drawn therefrom;
(2)      Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;
(3)      Failure to testify only becomes a relevant consideration when the State has established a prima facie case;
(4)      The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:
(a)      whether the truth is not easily ascertainable by the State but probably well known to the accused;
(b)      whether the evidence implicating the accused is direct or circumstantial;
(c)      whether the accused is legally represented;
(d)      whether the accused has before trial given an explanation which the State has adduced in evidence.
Appeal.
This was an appeal and an application for leave to appeal against conviction on a charge of break enter and steal.
Counsel:
D. O’Connor, for the appellant.
C. J. Bourke, for the respondent.
Cur. adv. vult.
27 November 1981
KEARNEY DCJ:  The facts and circumstances giving rise to this appeal are set out in the opinion of Andrew J. which I have had the benefit of reading. I respectfully concur in his Honour’s reasoning and conclusions. I would add only the two following observations.
First, where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. This proposition merely re-states, in a way particularly useful in dealing with circumstantial evidence, the basic proposition that the State must prove its case beyond reasonable doubt: see Grant v. The Queen[dcclxxvi]1. The learned trial judge correctly approached the case in this way.
Second, no accused person may be compelled to testify. He may choose not to do so. In that event, the court may well be left with an incomplete picture. In such circumstances, the court may draw inferences which properly flow from the evidence, and reach its conclusions thereon, without being deterred from so doing by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified: see R. v. Sharmpal Singh[dcclxxvii]2. Only in that sense may an accused by not testifying “strengthen” the State case.
ANDREW J:  This is an appeal and an application for leave to appeal against conviction imposed by the National Court sitting at Mt. Hagen on 26th February, 1981. The appellant was charged that on or about 25th day of November 1980 in Papua New Guinea he broke and entered the Mt. Hagen District Court House and therein stole a safe containing the sum of K4,350 in cash, the property of the Government of Papua New Guinea. Following conviction the appellant was sentenced to imprisonment for two years and ten months with hard labour.
The case against the appellant was largely circumstantial. The appellant was a clerk of the District Court in Mt. Hagen and as part of his duties he was in possession of the only key to the court’s safe. On the night of 25th November, 1980 the court house was broken into by the smashing of glass doors and the safe was removed from the general office. It was found the next day down a precipice leading to a river near Kogua plantation and brought to the police station. It was still locked and when cut open cheques and court documents were found inside but there was no cash. Evidence was called from the clerk of the court which established that at the close of business on 25th November, 1980, there should have been an amount of K4,327 in cash in the safe.
The learned trial judge found that none of these facts in themselves went very far towards implicating the accused in the offence that was committed that night. The appellant did not give or call evidence in the trial, nor did he make an unsworn statement. But there was evidence that on the morning after the offence he spoke to the clerk of the court and said that on this night he had travelled in a truck from his village with his friend to go to the pictures. He felt uncomfortable with the safe key in his back pocket and he took it out and put it in the truck’s ash tray. Arriving at the theatre he ensured that the truck was locked. After the pictures he said that he noticed that the small glass of the truck had been broken but fortunately the vehicle had not been stolen. He said he did not notice then that the safe key was missing. He drove back to Keltiga Community School where his wife was a teacher and he spent the night there. Early next morning he drove down to his home village and on the way back he saw the safe being pulled from the river. He said that it was then that he thought of the key and when he checked in the ashtray of the truck, the key was not there. There was evidence from a police constable, one Constable Peter Avoa, that he had seen the appellant at 10 p.m. that night outside the Highlander Hotel in Mt. Hagen. He had a conversation with the appellant and later he accepted a lift in the appellant’s vehicle which took him into town. In cross-examination it was put to Constable Avoa that he had never seen the appellant at the hotel and that he had not gone in the appellant’s vehicle. Constable Avoa insisted that he had.
The learned trial judge found that the evidence of Constable Avoa was crucial. He accepted his evidence and could not therefore accept the accused’s statement, made to the clerk of the court, that he had been at the pictures. It followed that he could not accept the accused’s story that the safe key was stolen from his vehicle. In this regard the trial judge took into account that the appellant had not called any evidence, which on his story he could have, that his vehicle had been broken into whilst he was at the pictures.
Thereafter there were findings that none of the appellant’s statement could be accepted. It was found that the appellant had an excellent motive for the particular modus operandi of this break and enter, namely that the safe was taken ten miles away, opened with a key and locked again and then discarded. As the trial judge said:
“A thief who had stolen the key would be most unlikely to use this peculiar method of committing the crime. He would simply use the key, open the safe in the Court House and steal the contents.”
It was noted that the safe had been dumped in the vicinity of the appellant’s village and in a place where it would not easily be found.
In convicting the accused, the trial judge, finding that much of the evidence was circumstantial, relied upon the direction to the tribunal in Plomp v. The Queen[dcclxxviii]3 at p. 252 per Menzies J.:
“... to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw...”
This was part of the more general requirement that guilt be established beyond reasonable doubt.
Against these findings, the notice of appeal raises several grounds, most of which are really particulars of the only substantial ground that there was insufficient evidence upon which the appellant could lawfully have been convicted.
The learned trial judge was very much aware of the need for care before convicting in a case of circumstantial evidence. In my view the judgment contains a lucid summary of the facts and the findings were both open and reasonable and I would not disagree with him.
I am in agreement with Miles J. in The State v. Tom Morris[dcclxxix]4 when he said:
“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) 50 A.L.J.R. 108 at p. 117):
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’.”
I think that in this case it was reasonably open to the tribunal of fact to find that the guilt of the accused was the only rational inference that the circumstances would enable it to draw. Briefly stated, the accused had the only key to the safe. There was opportunity and a motive for the “modus operandi”. The accused’s account was disbelieved for sound reasons, and the safe was located near his village.
All of these matters were considered against what was said to be a reasonable hypothesis consistent with innocence, viz. that an unknown thief stole the key from the accused, did the break and enter, removed the safe, stole the money from it and dumped it near the road leading to the accused’s village so that it would be found there and the blame would attach to the accused. The trial judge rejected this as a reasonable hypothesis. I would not disagree with him. In my view it might just raise the bare possibility of innocence but is hardly consistent with logic and common sense. I think it was a logical conclusion that a thief who had obtained the key would have no good motive for removing the safe from the court house and then dumping it.
There was a further ground of appeal that the State opening was so prejudicial in respect of evidence that it later could not lead, that the trial judge could not have excluded it from his mind. As I understand the submission in relation to this ground, it was that the State in its opening had said that it would call a witness called Pohon who would say that he had spoken to the accused who had told him that he had left the safe key in the ash tray of the truck and that he had then gone to see the movie which was about racing cars. The witness would say that the picture being shown that night was in fact a Western. This witness was unavailable during the trial. I can see no substance in this ground. The trial judge disbelieved the accused for good reason, namely that his account of going to the pictures was not given in sworn evidence and it did not compare with the sworn evidence, which he accepted, that the accused was elsewhere. There is no evidence anywhere that the trial judge paid any heed whatsoever to the State opening on this point and I think this ground is trivial.
Finally it was said that the trial judge erred in placing too much weight on the appellant’s failure to give evidence himself or to call witnesses in support of his case. The relevant part of the judgment is as follows:
“The learned prosecutor asked me to give some weight to the fact that the accused had failed to give evidence. He cited me the passage from Abia Tambule’s case (1973 unreported judgment No. 769) cited at p. 369 of Mr. Justice Andrew’s book:
‘If the truth is not easily ascertainable by the prosecution, but is probably well known to the defendant then the fact that no explanation or answer is forthcoming is a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might possibly appear.’
“In that case Frost S.P.J. cited that passage with approval from an unreported case of Minogue C.J. who in turn took the statement of law from May v. O’Sullivan (1955) 92 C.L.R. 654 at pp. 658 and 659. In Abia Tambule’s case Frost S.P.J. cited that passage in connection with four of the accused who gave their stories in a record of interview but elected to remain silent and elected not to call witnesses at the trial. I have also referred myself to a useful discussion on the cases by Professor O’Regan, ‘Adverse Inferences from the Failure of an Accused Person to Testify’, 1965 Criminal Law Review 711 and to a leading English authority R. v. Sparrow (1973) 57 Cr. App. R. 353 at pp. 363-364.
“Having studied these authorities I remind myself that absence of the accused from the witness box is not an admission of guilt nor is it something from which an inference of guilt may be inferred.”
This citation from the judgment does not support counsel’s submission. The trial judge simply accepted the sworn evidence of Constable Avoa and in comparison with that he was unable to accept the accused’s statement given to the clerk of the court. The appellant chose not only to refrain from giving evidence but did not avail himself of the opportunity of making an unsworn statement.
It is true that the Constitution, s. 37(10), provides that no person shall be compelled in the trial of an offence to be a witness against himself. Such a provision merely reaffirms the common law right. As is often said, the accused is not bound to give evidence and he can sit back and see if the prosecution has proved its case, and that while the jury has been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is assume that he is guilty because he has not gone into the witness box. See per Lord Parker C.J. in R. v. Bathurst[dcclxxx]5. That is not the situation here. There is no evidence that the trial judge assumed the appellant to be guilty because of his absence from the witness box.
The distinction in our jurisdiction is that the judge is the tribunal of both fact and law. The decided cases from other jurisdictions are of necessity dealing with the comments which it is permissible for the trial judge to give to the jury in his summing up, in relation to the accused’s failure to give evidence. In those jurisdictions the findings of the jury are “as inscrutable as the sphinx” (see per Lord Denning M.R. in Ward v. James[dcclxxxi]6).
In our jurisdiction we have in effect the juries’ findings of fact and the reasons for those findings. The question then is what may the tribunal of fact make of an accused’s absence from the witness box? The answer lies in common sense. An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened (see R. v. Sparrow[dcclxxxii]7). But again, common sense must dictate in each case as to what weight could be given to an accused’s absence from the witness box. I agree with the conclusions of Professor O’Regan in his article “Adverse Inferences from Failure of an Accused Person to Testify” 1965 Crim. L.R. 711, that:
1.       The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify.
2.       Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;
3.       Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case;
4.       The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:
(a)      whether the truth is not easily ascertainable by the Crown but probably well known to the accused;
(b)      whether the evidence implicating the accused is direct or circumstantial;
(c)      whether the accused is legally represented;
(d)      whether the accused has before trial given an explanation which the Crown has adduced in evidence.
None of these conclusions, in my opinion, detract from the trial judge’s finding that he could not believe the appellant’s explanations and it was reasonably open as a matter of common sense for the trial judge to remark that the accused failed to call his friend (whom he said was with him) as to the alleged break-in to the vehicle.
For these reasons I am of the view that it has not been shown that the verdict was unsafe or unsatisfactory. I would dismiss the appeal and the application for leave to appeal.
KAPI J:  This is an appeal by the appellant against a conviction on a charge of break and enter and stealing. It is not disputed that on the night of 25th November, 1980, there was a break and enter at the Mt. Hagen Court House and a safe containing money was stolen. The central issue in the case was whether the appellant was a party to this crime. The trial judge convicted the appellant on purely circumstantial evidence. In this regard I have had the advantage of reading the draft judgment of Andrew J. and I agree with his conclusions. I have only the following comments to make.
In considering the evidence of Constable Peter Avoa and the statement of the appellant, the trial judge said:
“As I say the evidence of Constable Peter and the statement of the accused are in head-on conflict. Weighing up the testimony of each man I am satisfied beyond reasonable doubt that Constable Peter is telling the truth and that he did see the accused at the Highlander Hotel, spoke with him and got a lift as he said, and the accused’s story that he was at the pictures is false.”
These findings of fact were made after assessing the evidence of Constable Peter Avoa and the appellant’s statement to Mr. Gabi. These findings were made on the material before the court without any reference to the question of any inference to be drawn by failure of the appellant to call a witness to support his story. He went on to support his finding by saying: “My finding on this is bolstered by the accused’s failure to call his friend as a witness to support his story that he was at the pictures that night.”
He then referred to R. v. Gallagher[dcclxxxiii]8 as authority for commenting on the accused’s failure to call the witness. After discussing the availability of this witness, his Honour said: “I was surprised that he was not called. The failure to call him is open to the inference, which I draw, that he would not have supported the accused’s story.”
Whether or not this is the proper inference to be drawn makes no difference to the result of this case as his Honour had already made findings of fact having regard to the accused’s statement to Mr. Gabi and the evidence of Constable Peter Avoa.
Later on in his judgment the trial judge commented on the overall failure of the accused to give evidence in the trial. He referred to authorities and said:
“Having studied these authorities I remind myself that absence of the accused from the witness box is not an admission of guilt nor is it something from which an inference of guilt may be inferred. And I am not prepared to say, as Frost S.P.J. was in Abia Tambule, that the accused’s absence from the witness box in this case makes the inference of guilt from the evidence of the prosecution less unsafe than it might possibly appear.”
With respect, I would adopt this statement as the better view of the law in this regard. With respect, I do not agree with authorities that suggest that an adverse inference against the accused may be drawn from his failure to give evidence. This is against the principle that the accused has a fundamental right to remain silent. Whether an accused person is guilty or not of an offence must be determined on the evidence of the prosecution alone and no inference of guilt by the failure of the accused to call evidence should improve a prosecution case which may be unsafe.
In other words, if at the close of the prosecution case, the prosecution case does not measure up to a standard beyond reasonable doubt, the case cannot be improved by any inference from the failure of the accused to call evidence. All that can be said is that the court will determine the case solely on the evidence of the prosecution.
Appeal dismissed.
Application for leave to appeal refused.
Solicitor for the appellant: D. O’Connor.
Solicitor for the respondent: L. L. Gavara-Nanu, Public Prosecutor.

[dcclxxvi](1975) 11 A.L.R. 503 at p. 504 (HC).
[dcclxxvii][1962] A.C. 188 at p. 198 (PC).
[dcclxxviii](1964) 110 C.L.R. 234.
[dcclxxix][1981] P.N.G.L.R. 493 at p. 495.
[dcclxxx](1968) 52 Cr. App. R. 251.
[dcclxxxi][1966] 1 Q.B. 273 at p. 301.
[dcclxxxii](1973) 57 Cr. App. R. 352.
[dcclxxxiii](1974) 59 Cr. App. R. 239.