SC895

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 58 OF 2005

BETWEEN:

ISHMAEL PAVO WRAKUHAN
Applicant

AND:

THE STATE
Respondent

Wewak: Gavara-Nanu, Mogish & Manuhu, JJ.
2007: 25 & 27 June

DECISION

CRIMINAL LAW – Review – Conviction – Grounds for review.

CRIMINAL LAW – Evidence – Hearsay – Admissibility - Tendering of statements by consent.

CRIMINAL LAW – Evidence – Practice and procedure – Duty of counsel. 

Cases cited.

Awoda v The State [1984] PNGLR 165.
Maring Kataka v Peter Kuman [1977] PNGLR 358.

Counsel.
The Applicant in person.
S. Kesno, for the Respondent.

27 June, 2007

1.	BY THE COURT: Introduction: The Applicant is seeking a review of his conviction after the National Court on 9 September, 2005 at Wewak, East Sepik Province found him guilty on one count of armed robbery and sentenced him to 17 years with hard labour.

Undisputed Facts

2.	On 6 November 2003, Francis Nawafe was travelling in his vehicle with passengers at the back towards Maprik, East Sepik Province. He was passing through Boim Sarai area between 2:00 pm and 3:00 pm when six men, armed with guns and bush knives, came out of the bushes and forced him to stop his vehicle. The travellers were held up and the vehicle was searched by the armed men. They stole K317,000.00 in cash and 50 kilograms of dried Vanilla beans and fled.

The Issues

3.	The main issue at the trial was whether the Applicant was one of the six armed men. The trial Judge found that the Applicant was one of the six armed men and convicted him. The Applicant disputes his conviction on the basis that: 

(a)	the trial Judge erred in that he relied on hearsay evidence; 
(b)	the trial Judge erred in not allowing the State witnesses to give oral evidence, and; 
(c)	the trial Judge erred in finding that cash of K700.00 found in the possession of his wife was stolen money.

4.	We will deal with each ground of review.

Whether the trial Judge relied on hearsay evidence.

5.	It is a settled principle that hearsay evidence is inadmissible. In this case, the Applicant was represented by a counsel at the trial during which all the statements of State witnesses were admitted into evidence by consent of defence counsel. The statements of Francis Nawafe and Samuel Saren clearly contain hearsay evidence which were the only evidence against the Applicant. 

6.	The statement of Francis Nawafe, which was admitted into evidence by consent, contains the following hearsay evidence:

"… then on Wednesday at around 12.00 am the police with their informants went up to Yangoru and apprehended the suspect Lukas Haunara who at that time was fully drunk. 

"The suspect was brought to the station and questioned in regards to the robbery incident which he admitted taking part with others namely David Nigi, Neno, Scotty, Ismael and Kuku"

7.	Samuel Saren’s statement was also tendered by consent. He simply recounted what he heard from accomplice Kuku Cletus, as follows: 

"He (Kuku) further went ahead and told us of the robbery incident committed yesterday and he was involved with Lucas Haunara, David Ningi, Ismael Hurakuwavia, Scotty Willie and Nono Cletus."

8.	Samuel Saren’s evidence on the Applicant’s drinking spree, on the other hand, is not hearsay evidence but it does not necessarily prove that the Applicant participated in the robbery. When considered against the principles on circumstantial evidence, it is possible that the Applicant did not participate in the armed robbery.

9.	Unfortunately, the trial Judge gave credence to the hearsay evidence of Francis Nawafe and Samuel Saren when he said:

" Although you were not identified by any of the State witnesses at the scene of the robbery, there is evidence of those involved in the commission of the offence disclosing you as one of the persons with whom they committed the offence"

10.	In our respectful view, the trial Judge made a fundamental error in law when he accepted hearsay evidence and took them into account. In any event, it remains to be seen whether the conviction should be set aside for this reason.

11.	Relevantly, Williams, J. in Maring Kataka v Peter Kuman [1977] PNGLR 358 commented that "admission of hearsay evidence does not itself vitiate a conviction: the test to be applied is whether or not it is reasonably probable that the evidence wrongly admitted influenced the decision". In Awoda v The State [1984] PNGLR 165, the Supreme Court noted relevantly that: 

"Perhaps the most appropriate example of the other line of approach is to be found in three cases in which Bray J. took part: and see also R. v. Benson (1909) 3 Cr.App.R 70, 71-72. The first was R. v. Davis and Ridley (1909) 2 Cr.App.R. 133 in which the members of the Court of Appeal commented adversely upon the failure of counsel to take objection during the trial and observed that if such a practice was starting to emerge then the court would certainly have to be on its guard against it. Darling J., during the course of its judgment for the court, made the following comment at 140:

"... if counsel on the other side do not object, it is not obligatory on the judge to do so. When a prisoner is defended by a counsel, and he chooses, for reasons of his own, to allow such evidence to be let in without objection, he cannot come here and ask to have the verdict revised on that ground."

"An impressive array of judges joined together in the decision of R. v. Ellis [1910] 2 K.B. 746 where the comment was passed at 763:

"... no doubt this Court must be careful in allowing appeals on the ground of the reception of evidence that ought not to have been admitted when no objection has been made at the trial by the prisoner's counsel."

"In 1919 Bray J. repeated his view in another case, R. v. Sanders [1919] 1 K.B. 550 at 553, concerning failure to object to the admission of hearsay evidence, as follows:

"In our opinion, if it was intended to rely on this point, the objection should have been repeated at the time when the evidence was tendered, and not having been taken then, it cannot now be taken in this Court at all events when the prisoner was represented by counsel."

"If what the court was saying in the last case cited, amounted to an inflexible rule that an appellant could not argue a point on his appeal merely because it had not been taken or was overlooked during his trial, and irrespective of the effect this omission had on whether or not there was a substantial miscarriage of justice, we would have as much difficulty accepting it as the majority of the judges in the Court of Criminal Appeal in New South Wales had in R. v. Branscombe (1921) 21 S.R. (N.S.W.) 363 at 367. However, we do not think that the learned judges involved in Sanders had lost sight of the requirements under s. 4 of the Criminal Appeal Act 1907 (Imp.). We believe that the statement made above is impliedly subject to the overall requirement to ensure there has been no miscarriage of justice." (our emphasis)
 
12.	We have considered the test as stated by Williams J in Maring Kataka and requirement as stated by the Supreme Court’s comments in Awoda. We reaffirm the principle that admission of hearsay evidence does not itself vitiate a conviction. The test is, however, modified to consolidate Awoda and Maring Kataka. The test should be whether or not it is reasonably probable that the evidence wrongly admitted influenced the decision to the extent that there was a miscarriage of justice. Thus, while hearsay evidence may be wrongly admitted and wrongly taken into account by a trial Judge, a conviction could still stand on evidence of admission by an accused or on the basis of other independent and or credible evidence. 

13.	In this case, the Statement of Sakawar Kasieng, which was tendered into evidence by consent, contained evidence of admissions by the Applicant that he was a party to the armed robbery. The witness is a Senior Sergeant and Commander of Wewak Police Station. His evidence is as follows:

"The third suspect, Ishmael Wrakuhau of Holik Village was arrested by Yangoru Police and brought into Wewak. I cautioned him and then went onto to tell him that Lukas and David mentioned his name and that he was also a party to the robbery …"

"Ishmael freely admitted he was a party to the robbery…. 

"On 06/12/2003, we proceeded to Numbouruon Village and Ishmael personally requested Peter Nangoro that he handed over the money that he (Ishmael) gave to him for safe keeping. Peter Nangoro denied that he had no knowledge of the money given to him by Ishmael. Ishmael however maintained that he personally handed the money to Peter Nangoro who approached and convinced him to participate in this robbery…." (sic.)

14.	This evidence is not hearsay evidence. It is direct evidence of the Applicant’s admission of his involvement in the robbery. The Applicant does not deny the admission but he contends that he was badly beaten and he feared for his life. He had to say something to save himself from the assaults and beatings. If this was the case, the Senior Sergeant should have been called and cross-examined and his evidence on the admission challenged by the Applicant. The Applicant failed to cross-examine the Senior Sergeant and has, by choice, left a huge dent in his alibi defence. After conceding to the evidence of the Senior Sergeant, he cannot now turn around and challenge that evidence. See Browne v Dunn (1893) 6 R 67 (HL) which was noted by the trial Judge.

15.	Defence counsel have been criticized time and again over this apparent lack of diligence on their part to tactfully present their clients’ cases. In Awoda v The State [1984] PNGLR 165, for instance, the Supreme Court had this to say:

"We deplore any conduct on the part of counsel which encourages the admission of evidence prejudicial to his client's case in the hope that at the end of the trial some sort of advantage might be made from such course because the court and opposing counsel had been put off their guard, yet the evidence is known by defence to be clearly inadmissible. Obviously, we are not concerning ourselves here with those areas where genuine doubt exists. What we are criticising is the type of situation where counsel firmly believes that the material is inadmissible and illustrates the firmness of that belief by making submission on the point immediately after the end of the trial."

16.	In the circumstances, while the trial Judge took into account irrelevant matters, including the issue of identification, which was not an issue before him, he was entitled to accept the Senior Sergeant’s evidence, which was admitted into evidence by consent. In the circumstances, we find no miscarriage of justice and we dismiss this ground. 

Whether the trial Judge erred in not allowing the State witnesses to give oral evidence?

17.	The Applicant argues that the trial Judge erred in not allowing the witnesses for the State to give oral evidence. In a criminal trial, the decision as to whether a witness is called to give oral evidence or not is a matter for the defence counsel. It is not for the trial Judge who is not a privy to an accused person’s instructions. In this case, the record of proceeding clearly shows that defence counsel consented to statements of State witnesses being tendered into evidence. The admission of incriminating evidence was not decided by and influenced by the trial Judge. This ground of the review is misconceived and is without merit. 

Whether the K700 cash was part of the stolen money?

18.	The Applicant argues that the trial Judge was wrong in finding that cash of K700.00, which was found in the possession of his wife, was part of the stolen money. The Applicant’s evidence is that the K700.00 was his own money. The trial Judge was entitled to reject the Applicant’s evidence. Having found that the Applicant was involved in the armed robbery, the trial Judge was entitled to conclude that the K700 in cash was part of the stolen money. Accordingly, this ground is also without merit.	

Conclusion

19.	For the foregoing reasons, we find no miscarriage of justice in the Applicant’s conviction. The Applicant’s application for review is, accordingly, dismissed. 

______________________

Public Prosecutor: Lawyer for the Respondent