SC2263

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 8 & 9 OF 2020

BETWEEN
LUIS INGIAN & CHARLIE PARUA
Appellants

AND
THE STATE
Respondent

Waigani: Batari, Manuhu, Berrigan, JJ
2022: 29th March & 29th July

SUPREME COURT – Appeal – Joint trial - Evidence – Circumstantial evidence - Admissibility of record of interview of co-accused – Admissibility of admissions against co-accused. 

Cases Cited:
Papua New Guinean Cases

The State v Justin Komboli (2005) N2891
The State v Mathew Lewaripa (2015) N6027
Pritchard v State [2016] SC1541
State v Aparo [1981] N333

Overseas Cases

United States v Gottfried 165 F. (2d) 360 (CCA 2d 1948)
Slatterie v Pooley (1840) 151 ER 579
R v Rudd (1948) 32 Cr. App. R. 138

Counsel:

N. Hukula, for the Appellants
D. Kuvi, for the Respondent

29th July, 2022
1.	BATARI & MANUHU, JJ:   Appellants Luis Ingian (“Luis”) and Charlie Parua (“Charlie”) were indicted with Brian Kovea (“Brian”) and Petrus Haiveta (“Petrus”) on one count of aggravated robbery over allegations that they, dressed in police outfit, robbed Titan Supermarket at Kwikila of more than K6,000 in cash and items valued at over K20,000 on 26 August 2018.  It was alleged that after robbing the supermarket, they got into a grey sedan and left the scene.  Upon arraignment, the appellants and Brian denied the charge.  Petrus pleaded guilty so the hearing of his plea was deferred until after the completion of the trial.

2.	The trial commenced with tendering of documentary evidence and records of interview by consent. In relation to Brian’s record of interview, Mr. Hukula advised the trial judge that he had instructions to object to the tender of his record of interview.  The trial was adjourned, among other things, to allow counsel to prepare the formal notice of objection.

3.	When the trial resumed, the trial judge was advised that Brian had escaped.  After hearing submissions from counsel, the trial judge decided to proceed with the trial in Brian’s absence.  This is not the first time for a trial to be continued against an accused who escapes or is unavailable with no satisfactory explanation.  See for example the cases of The State v Justin Komboli (2005) N2891 and  The State v Mathew Lewaripa (2015) N6027).  The issue is however not before us on this appeal.  

4.	The trial concluded with guilty verdicts and 11-year sentences for the appellants and Brian in absentia.  Before us is the appellants’ appeal against conviction only after Luis abandoned his appeal against sentence.  

5.	Two issues emerge from the grounds of appeal.  They are, whether the trial judge erred in law and in fact in convicting the appellants on circumstantial evidence and, secondly, whether the trial judge erred in law and in fact relying on accomplice evidence to convict.  At the trial, it was not disputed that the robbery took place.  The only issue was whether the appellants took part in the robbery. 

6.	In that regard, there was no identification parade.  The witnesses at the scene of the crime were not asked to identify to anyone in such a parade.  Neither was there any fingerprint evidence.  Only Petrus, who pleaded guilty, was identified with the aid of a CCTV footage that was installed inside the supermarket. 

7.	Apart from the CCTV footage, the rest of the evidence were circumstantial.  It was not disputed that the appellants, Brian and Petrus were apprehended at Gunugau, a village between Gabagaba-Kwikila Junction and Hula Village.  They were travelling in a silver grey Toyota Camry Sedan Reg BFI-207 when they were stopped by police.  According to Senior Constable Bobby Ogara, a search ensued during which a bag was found with substantial cash, flex cards and varieties of cigarette packets. Also found were clothing and a police boot.  The general manager of Titan Supermarket who was also present during the search identified Petrus as the person in the CCTV footage.  He also identified the items mentioned above as items from the supermarket.  However, the items were attributed to Petrus, not the appellants.
    
8.	The prosecution argued that a grey vehicle was used as a getaway vehicle in the robbery; that the appellants were in the company of Petrus who was in possession of the stolen items.  On the other hand, Gunugau Village is quite far from Kwikila.  The defence argued that the grey car could have been another car.  The appellants were not seen in the CCTV footage.  Thus, there was no evidence to place the appellants in the supermarket during the robbery.  The appellants denied being at Kwikila on the day in question.  They gave evidence that they were travelling from Port Moresby to Hula when they were stopped by police at Gunugau Village. 

9.	On the evidence, it was open to the trial judge to consider the foregoing circumstantial evidence and arrive at an appropriate decision on verdict.  The trial judge referred to the relevant principles on circumstantial evidence.  He also warned himself about the dangers inherent in convicting a person solely on circumstantial evidence.  

10.	However, it would be a fundamental error of law if the trial judge relied on Brian’s record of interview to convict the appellants.  The trial judge set out Brian’s record of interview in his ruling on page 200 of the Appeal Book, thus:

“The record of interview of Brian Kovea. This accused is 30 years old and he comes from Lese Keipi Village, Malalaua in the Gulf Province. He is unemployed, married and has children- two children. On Sunday, 26th August 2018 between 4 o’clock and 5 o’clock in the afternoon, he said he was picked up at Gaire village- question and answer 21 and 31 in a taxi described as Toyota Camry registration number BFI 207. He did not know why they were driving along the highway but said the taxi driver told him there was a job to be done at Kwikila; question/answer 24.
“The taxi proceeded along the highway and at Gabagaba junction they picked up a man; question/answer 25 and 28. He did not know who he was but assumed the driver knew him as they were communicating with him over a mobile phone; question and answer 22 and 26. Throughout the interview, he denied knowledge of the robbery at Kwikila. However, he admitted that, and I quote, “The three of us were engaged for a getaway and one was involved in the robbery; question and answers 39, 28 and 33. Much later in the interview, he gave detailed information about his role in the robbery at the Titan Supermarket. 
“He was asked- question 42: “Can you tell us about this armed robbery that took place in Kwikila Titan Supermarket on Sunday, 26th August 2018?” Answer: “Yes, on Saturday 25 August 2018 at about 2 pm, I was selling betel nut at Waigani when Charles approached me and told me that there was an activity that was going to take place at Kwikila the next day. Some guys said to do the job at Kwikila. Charles told me to meet him at Gaire. I told Louis to accompany me to Gaire for the setup tasking at Kwikila. 
“On Sunday, 26th August 2018, Louis and I proceeded to Gaire. At Gaire we met Charles who was returning from Kwikila way. When Charles received a phone call, he told us to proceed to Gabagaba junction and pick up someone. At Gabagaba junction, we picked up a guy and proceed to Hula road. On our way, police approached and apprehended us in a car. They search our vehicle and took us to Kwikila police Station and detained us there. Charles, Louis and I were not directly involved in the robbery. We did the getaway only.”  (our emphasis)

11.	The taxi driver would be Charles.  The man they picked up at Gabagaba junction would be Petrus.  In his record of interview Brian said that he and the appellants “did the getaway”.  It was a significant piece of incriminating evidence against the appellants. 
 
12.	The trial judge’s consideration and analysis of the evidence is as follows:

“According to the evidence of Navine, exhibit A, he saw the accused persons board a waiting sedan. Mr. Hukula submitted the evidence lacks details of the make of the vehicle, the type of vehicle and the colour of the vehicle. As it is, the evidence is too general and it will be difficult to infer it was the same vehicle that was seen at Kwikila outside the Titan Supermarket. Counsel also submitted that if the vehicle was used, it would have been expected to be driving up fast to evade if the vehicle was used, it would have been expected to be driving up fast to evade apprehension. In the present case, the accused were driving slowly along the Hula Road when they were apprehended. Their manner of driving slowly supports their contention that they were on a leisure drive to Hula. 
“The State’s evidence is that the silver-grey taxi was the same vehicle also describe as the sedan that was parked near Titan Supermarket. There is no suggestion that there were other grey taxi driven by Charles Parua with its passengers Petrus Haiveta, Brian Kovea and Louis Ingian. Were the accused persons part of the robbery? I do not accept the evidence of Charles Parua and Louis Ingian. In my view, they all concocted their evidence to line with each other’s testimony. In their zeal, they exposed themselves to many glaring inconstancies and contradictions. Let me identify them. 
“Brian Kovea said Charles Parua picked him up at Gaire village. He further stated that he was with Louis Ingian at Gaire village when they were picked up by Charles in his taxi. Charles Parua said he picked up Brian Kovea and Louis Ingian at Waigani TST. Louis Ingian was picked up at Waigani. Louis Ingian and Shirley Sarufa said Louis Ingian was picked up at Waigani. Louis Ingian and Charles Parua denied they picked up Brian Kovea at Gaire. Both said Charles Parua picked up Brian Kovea and Louis Ingian at Waigani. Brian Kovea said whilst he and Louis Ingian were at Gaire, he saw the taxi driven by Charles Parua coming from Kwikila way. Louis Ingian and Shirley Sarufa and Charles Parua said the- they were picked up at – in his taxi at Waigani Supermarket. Charles Parua said he was picked up- he picked up Brian Kovea and Louis Ingian at Waigani. Charles Parua said he was in Waigani on Sunday morning; yet Brian Kovea said he saw Charles in his taxi returning from Kwilkila.” (our emphasis).

13.	It is clear that Brian’s record of interview was used by the trial judge.  The trial judge then proceeded to make adverse findings of fact in the next paragraph, thus: 
“These inconsistences and contradictions seriously taint the defence evidence. I find they lied to this court when they said they were never at Kwikila. Their lies demonstrate conscience of guilt which they tried to cover up in their own evidence. I find they were present at Kwikila outside Titan Supermarket in a sedan, a silver taxi during the robbery. Their presence was to provide a getaway vehicle for the robbers.  Brian Kovea’s own admission that the provided the getaway vehicle implicates him to the robbery.  His evidence cannot be used against Charles Parua and Louis Ingian who were alleged to be his accomplices, but I have no hesitation in finding then that Charles Parua and Louis Ingian were also involved in the robbery given the litany of constrictions and inconsistencies in their evidence.” (our emphasis)
14.	While the trial judge cautioned himself against reliance on Brian’s record of interview, with due respect, his Honour actually relied on it to make a finding of fact that the appellants’ “presence was to provide a getaway vehicle for the robbers.”  Brian’s record of interview was the only evidence that linked the appellants to the getaway vehicle and the robbery.  

15.	The law in PNG on admissibility of evidence of an accused against a co-accused is a common law import. The position taken by the English Courts which was followed by the United States Court of Appeal, Second Circuit, is that a confession of an accused in a joint trial is evidence only against him: United States v Gottfried 165 F. (2d) 360 (CCA 2d 1948).  It is not admissible against a co-accused.  

16.	Similarly, in Pritchard v State [2016] SC1541 (13 October 2016), it was held that the confessional statement by a co-accused, James Paru, was not admissible against the appellant. The Court said:    

“46. It is important to note that whatever inferences may be drawn against James Paru from this statement, it has no evidentiary value or weight against the appellant. (see Bannon v R [1995] HCA 27; (1995) 185 CLR 1 Baker v R [2012] HCA 27). It was inadmissible against her.” 

17.	Relevantly, how Brian’s record of interview was admitted is interesting.  When the trial judge was informed that Brian had escaped, his reaction (at page 63) was, “All right. Now, the – all right, the – what about the voir dire?”  State Prosecutor, Ms. Tamate, responded, “Your Honour, that is – perhaps my friend can advise.  The State has received the notice.  Our view is that the – there are questions that the State would need to put to the accused Brian Kovea but in his absence, your Honour, it would be, in my submission, unfair on the State for the voir dire to proceed.”  

18.	The trial judge then said “…the whole thing about the trial in the absence of the accused is that much of the proceedings will go without… much contention because he is not around”.  At page 64, the trial judge said, “So Mr Hukula really has no instructions”.  

19.	On page 73, notwithstanding the trial judge’s position, Mr. Hukula told the trial judge that he had instructions to object to the tender of the Brian’s record of interview.  The trial judge responded, “You had an instruction to object.  Your client has escaped, you do not really have any more instructions.”  Mr. Hukula seemingly gave up when he said, “So I leave it to the discretion of the court.”  The voir dire was effectively abandoned.  The record of interview was eventually admitted as evidence for the prosecution.

20.	We are of the view that the record of interview was improperly and unfairly admitted.  Notwithstanding his absence, Brian was on trial and was entitled to be tried fairly and according to law.  Part and parcel of that right is the right to cross-examine witnesses and the right to challenge admissibility of evidence.  This is the same right that he has in relation to all prosecution witnesses.  It is not unfair to the prosecution that Brian was not available to be cross-examined.  

21.	In our opinion, the voir dire was unfairly aborted when notice of objection had been served on the prosecution, and when Mr. Hukula had already received instructions from Brian.  His escape means that he wouldn’t be available to give evidence but Mr. Hukula was entitled to cross-examine the witnesses on the alleged impropriety in the conduct of the record of interview in accordance with those instructions.

22.	We are of the view therefore that Brian’s record of interview was irregularly admitted into evidence.  Its admission was in breach of his constitutional right to be tried fairly and according to law.  If the record of interview had been properly admitted, it would be evidence against Brian only.  It should never have been used as evidence against the appellants. 

23.	The trial judge was right when he said Brian’s record of interview “cannot be used” against the appellants but, with due respect, he didn’t realise that he relied on it to make an adverse finding of fact against the appellants. This is an identifiable error that has resulted in a serious miscarriage of justice.
  
24.	If Brian’s record of interview is completely removed, the remaining evidence may not be sufficient to convict the appellants.  The appellants’ evidence that they were travelling to Hula from Port Moresby, and that they picked up Petrus at Gabagaba Junction, wasn’t contradicted by any other evidence.  Neither the police uniforms nor the firearms used during the robbery were found in the vehicle.  Perhaps critically, there was no clear evidence about how soon after the robbery the appellants were apprehended.  The grey car that was seen at Kwikila could have been another grey car which picked Petrus up at Gabagaba Junction.
  
25.	In the circumstances, we are satisfied that there is more than a shadow of doubt over each of the appellants’ conviction, and we would uphold the appeals on that basis.
26.	BERRIGAN J: I respectfully agree with the decision of my learned brother judges for the reasons outlined above but offer the following brief comments.

27.	An out of court statement is not evidence of the truth of what is said unless the statement falls within one of the exceptions to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker: Bannon v The Queen (1995) 185 CLR 1 at [19]. 

28.	That is because an admission, or a statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement, has long been accepted as an exception to the hearsay rule because it is presumed to be reliable. What an accused person admits or confesses to be true may reasonably be presumed to be true:  Slatterie v Pooley (1840) 151 ER 579, per Viscount Parke at 581. 

29.	But there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party: Bannon v The Queen (supra) at [20]; Aparo, Araba, Haio, Tinidipu and Akwia v The State [1983] PGSC 2; SC249; Pritchard v State [2016] SC1541.   

30.	It is a fundamental rule of evidence at common law that statements made by one co-accused to police or others outside of court (other than statements made in the course of a joint criminal enterprise to which the accused was a party for the purposes of the co-conspirator’s rule) are not evidence against another co-accused unless the co-accused either expressly or by implication adopts the statements and thereby makes them his own:  Aparo, Araba, Haio, Tinidipu and Akwia v The State; R v Rudd (1948) 32 Cr. App. R. 138,  see also Archbold, 2015, at paragraph 15-341. 

31.	If a co-accused goes into the witness-box, however, and gives evidence in the course of a joint trial then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-accused: see Aparo, Araba, Haio, Tinidipu and Akwia v The State (supra); R v Rudd (supra) at 140.  

32.	Thus, it is important to distinguish the admissibility rule about out of court admissions from the rule that requires a trial judge to warn him/herself before relying on accomplice evidence given in court.  The latter is a warning that goes to weight.

33.	In the event that Brian had given evidence and adopted the statements made in his record of interview against the appellants then that evidence would have been admissible against the appellants, and, subject to the usual warning about accomplice evidence, could have been relied upon by the trial judge against them. As to the nature of the warning see: Pritchard; Hagena v State (2017) SC1659; Emos v State (2017) SC1658 the Supreme Court; The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373; The State –v- Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v. The State (2009) SC1308.

34.	For completeness, I should also note that if Brian had elected to give an unsworn statement from the dock instead, its contents would not have been admissible against his co-accused: State v Aparo (supra) applying R v Simpson (1956) A.L.R. 623; R v Gregory Ino Gemai [1974] PNGLR 2.

Orders accordingly.
________________________________________________________________
Leslie Mamu, Public Solicitor: Lawyer for the Appellants	
Pondros Kaluwin, Public Prosecutor: Lawyer for the State