Unreported Supreme Court Decisions
SC518
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 be 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 the Bank of Sooth 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’s 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 pistol, held up the bank staff and stole the amount of money referred to 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       Thats 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 explanation 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, thought the appellant who was in the bank at the time might have recognised him and that by giving him 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