Unreported National Court Decisions
N567
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JUPUI KAPERA
Lae
Wilson J
10-11 November 1986
13 November 1986
CRIMINAL LAW - CIRCUMSTANTIAL CASE - ADVERSE INFERENCE DRAWN FROM THE ACCUSED’S FAILURE TO GIVE EVIDENCE
Cases Cited
R v Peake 9 SASR 438
Paulus Pawa [1981] PNGLR 498
R v Sparrow [1973] 57 CR APP R 352
The State v Tom Morris [1981] PNGLR 493
Text
Cross on Evidence 2nd Australian Ed.
JUDGMENT
WILSON J:  The accused pleaded not guilty to an indictment which charges that on 9 October 1984 he murdered one Bernard Pagau.
THE OFFENCE
It is alleged that on the evening or early morning in question a house at 3 Mile DPI Station, near Lae, was broken into and that the person inside the house, the domestic servant of the owner, was bound by the hands behind his back and also has his legs bounded. His throat was cut.
THE EVIDENCE
The main evidence consists of latent finger print impressions found by Constable Burumbai Kimai on two louvres which were removed to effect the break and enter.
Only two of the three louvres removed were found and the prints appear on the louvres at a place where one would expect force from fingers holding the edge of the louvres to pull them out.
Constable Kimai having located the prints by the usual dusting process delivered the louvres to Sgt Major Kaminiel Selot who at that time was the Officer-In-Charge of the Fingerprint Section at the Lae Police Station. He examined the print of the ring finger and undertook a comparison against the records he had of other prints. He matched the print with that of the defendant.
Apart from taking the prints at the scene, Constable Kimai also saw the bound body lying on the bed with blood staining and also noticed suitcases that had been opened. He was unable to find any other prints.
Through Constable Kimai photographs showing the broken security wire, the missing louvres, the body of the deceased bound with his throat cut and the house from the exterior were tendered in evidence.
On 7 November 1986 the defendant was arrested. At the time of’ arrest he had a knife, with a blade about 8” long.
A record of interview was conducted. It was not signed by the defendant. It was tendered by consent by the State Prosecutor as a record of a conversation the defendant had with Constable Isaac Mol of Lae CID.
In this document the defendant says that he escaped from Buimo Corrective Institution on 30 September 1984 and that he had only come to Lae the day before his arrest, 6 November 1984, as he had been hiding in the mountains and near Wau. He also says that he doesn’t know about the offence.
Once the defendant had been apprehended Sgt Major Selot took a fresh set of fingerprints for comparison with the prints on the louvre. He gave evidence of finding 18 points of similarity and a chart showing these points on enlarged photographs of the prints used for comparison was tendered in evidence.
Finally, evidence was given by Dr Manase Saott who examined the deceased. He stated that on external examination of the body he formed the view that the cause of death was massive bleeding due to severance of major arteries and the jugular vein. He stated that the wound had clean edges and it was inflicted by a sharp instrument.
At the close of the State’s case the defendant indicated that he would not be giving evidence himself or calling any evidence.
FINDINGS
(1)      The incident - from the evidence of Constable Kimai and the photographs tendered I find it a reasonable inference to draw that there was a break and enter of the premises, that the deceased was bound and murdered by the perpetrator of the break and enter and that the house was disturbed in an effort to find valuables.
It is possible that there was more than one perpetrator but in view of the fingerprints I think this is unlikely. In any event if there was more than one person involved, criminal liability would attach to all of such persons due to the operation of s 7 and s 8 of the Criminal Code.
(2)      Finger prints - the evidence given by Constable Kimai and Sgt Major Selot shows no weakness at all in their approach to compiling the evidence from the scene through to the comparison at the station. I accept their evidence and I find that I am satisfied beyond reasonable doubt that the fingerprints on the two louvres removed to gain entry to the house are the fingerprints of the of the defendant, Jupui Kapera.
(3)      Conversation with Constable Mol on 7 November 1984 - As I have previously indicateda copy of an unsigned Record of Interview was tendered in the prosecutions case with the agreement and consent of the defence counsel. This course was adopted to save the time and effort of taking oral evidence of the conversation from Constable Mol. There is nothing exceptional in this practice and it does in fact ease the burden on the Court of transcription and is made acceptable by defence counsel’s admission of the material.
The document does not however become part of the defendant’s evidence in a strict sense as it is not evidence he gives on oath nor is it evidence on which he has been cross examined. It is perhaps best described as material in evidence which the Court is entitled to consider. See a discussion of an analogous case involving an unsworn statement of an accused in R v Peake 9 SASR 438.
Apart from the defendant’s assertion that he knew nothing of the trouble, the only other relevant matter discussed in this document is his denial that he was in Lae before 6 November 1984. He says that he was a prisoner in Buimo Corrective Institution until he escaped on 30 September 1984, then stayed in the mountains and near Wau before coming to Lae on 6 November.
In evidence regarding the fingerprints the court was told by Constable Kimai that latent prints could exist on a surface like a metal louvre for up to two months. According to the statement made to the Police it would be impossible for the defendant to be in the vicinity of the house before 6 November. Since I accept the fingerprints of the defendant as being on the louvre, I disbelieve the positive assertion as to his whereabouts contained in the record of his conversation with the Police.
(4)      The knife - the discovery of a knife on the accused at the time of the arrest has no bearing on my deliberations in this matter there being no evidence at all of a forsenic nature linking this weapon to the death of the deceased.
NATURE OF THE CASE AGAINST THE ACCUSED
The case against the accused is circumstantial. I must exercise great care in such cases and I am aware that any inferences I draw must be tested against the exclusion of any reasonable hypothesis that would indicate innocence.
Fingerprint evidence is what has been termed “very strong retrospectant circumstantial evidence” (see Cross on Evidence 2nd Aust. Ed. p 49) as the court takes judicial notice of the fact that no two people have identical fingerprints and they are sufficient evidence of identity on which to base a conviction.
The fact that the defendant’s prints are on the louvres that were removed to gain entry to the house clearly places the defendant at the scene of the crime. Any reasonable hypothesis consistent with innocence would have to have the component of the defendant’s presence of the house sometime within two months of 9 October 1984. He asserts by inference through the conversation with the Police that he was never at that particular house, but he must have been as his prints were found there.
FAILURE OF DEFENDANT TO GIVE EVIDENCE
As I have mentioned, at the close of the State’s case the defendant declined to give evidence.
The question that arises from this situation is what may I, as the tribunal of fact (what some may term my jury function) make of the defendant’s absence from the witness box?
As a general principle, common sense must dictate in each case what weight, if any, can be given to the defendant’s absence from the witness box. The leading case governing the principles to be applied in these circumstances is the Supreme Court decision in Paulus Pawa v The State [1981] PNGLR 498. At p 504 in the leading judgment of Andrew, J., the following comment appears in support of the proposition that common sense must be a major factor in determining what significance is made of failure to give evidence:
“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 [1973] 57 CR APP 352)”
In Cross on Evidence 2nd Aust. Ed. p 47 the following broad statement appears on the general effect of the absence of an explanation and failure to give evidence:
“An absence of an explanation of facts which tell against a party should only be treated as evidence against him when the facts in question constitute a prima facie case in the sense that they would justify, without in any way necessitating, a finding of liability. Even then, the absence of an explanation is only significant when the party against whom the prima facie case is proved can reasonably be expected to give an innocent explanation if there is one. When these requirements are satisfied, the failure to given an explanation will support an inference against the party who does not produce one.”
In criminal cases courts have been very cautious in drawing inferences from an accused’s failure to give evidence or offer an explanation. Our Constitution in s 37(10) enshrines a person’s entitlement not to be compelled to be a witness against himself. It is also clear that the absence of evidence from a defendant does not, nor should it, impute guilt.
In Paulus Pawa the Supreme Court approved the conclusions of Professor O’Reagan in his article “Adverse Inferences from Failure of an Accused Person to Testify” 1965 Crim L R 711. These conclusions are, I think, useful to test the particular circumstances of a case against the criteria for whether or not the court should, or is entitled, to draw an adverse inference. The conclusions (or statements of principle) and criteria are as follows:
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.
I consider it appropriate to comment on each of these matters in my reasoning process in this particular case and I do so by reference to the numbering set out above:
1.       I have already stated this principle, which I adopt.
2.       The vital matter here is that the accused’s fingerprint is at the scene and this clearly established fact in my mind involves the accused to such an extent as may reasonably call for an innocent explanation if there is one.
3.       Although as I have mentioned the case against the accused is a circumstantial one, I consider that a `prima facie case’ or `a case to answer has been made out.
4.
(a)      In the circumstances of this case, and in the absence of admissions or eyewitnesses (of which there were none) I consider that the truth would not be easily ascertainable by the State. The truth, however, regarding the presence of the accused’s fingerprints on the louvre would be well known to the accused.
(b)      The evidence implicating the accused is direct in respect of the fingerprints and is sound implication evidence. I add my early characterization of the overall case however as circumstantial.
(c)      The accused is legally represented and I note that he was given access to a lawyer before his conversation with the police.
(d)      To the extent that the accused has said he doesn’t know about the trouble he has provided an explanation. This explanation, however, does not stand against my finding that his finger prints were on the louvres which were removed. See also my earlier comments regarding his assertion as to his whereabouts.
As I have said, I consider it appropriate to the decision making process to carry out the exercise I have just set out. In respect of that exercise I make two observations. The significant circumstances are not cumulative nor are the conclusions and criteria other than a guide which may be of assistance.
The primary approach remains in my view, the application of common sense to the circumstances of the particular case.
CONCLUSION
Apart from the principles I have just discussed regarding the failure of an accused to testify, I am also in agreement with Miles, J. in The State v Tom Morris [1981] PNGLR 493 at 495 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 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’.”
Accordingly I find that the only rational inference open to me in the circumstances is that the defendant was involved in the break and enter of the premises and the murder of the occupant, and I find that I am satisfied of the guilt of the defendant beyond reasonable doubt.
The defendant is convicted of the crime of murder.
Lawyer for State: Public Prosecutors Office
Counsel: G Towaluta
Lawyer for Defendant: Public Solicitors office
Counsel: J Everingham