Most serious crimes in Papua New Guinea are proved without an eyewitness. This is the case that tells a trial judge what circumstantial evidence must add up to before it can support a conviction.
Paulus Pawa v The State [1981] PGSC 16; [1981] PNGLR 498; SC216
Supreme Court, Waigani — Kearney DCJ, Andrew and Kapi JJ, 27 November 1981. Appeal against conviction for breaking, entering and stealing.
What happened
A safe was broken into and money stolen. Nobody saw who did it. The prosecution case against Mr Pawa was built from circumstances: he held the only key to the safe, he had the opportunity and a motive, the method fitted someone with inside knowledge, his own account was disbelieved for sound reasons, and the safe was found near his village. He did not give evidence. He was convicted and appealed.
What was argued
Mr Pawa argued that the circumstances were equally consistent with an innocent explanation, so the trial judge could not have been satisfied beyond reasonable doubt, and that no adverse inference should have been drawn from his silence. The State argued that, taken together, the facts left guilt as the only reasonable conclusion.
The National Court decision affirmed
A year earlier, in a wilful murder trial, Miles J had ruled on a no-case submission that where a case rests substantially on circumstantial evidence the question is whether guilt is the only rational inference that all the circumstances would enable the court to draw, following the High Court of Australia in Barca v The Queen. Which competing inferences to accept is a question of fact for the court. A discretion to stop the case exists at the close of the prosecution, but only where an overall view leaves the court concluding it would be unsafe and dangerous to convict.
What the Supreme Court decided
When a case rests substantially on circumstantial evidence there should be an acquittal unless all the circumstances are inconsistent with any reasonable hypothesis other than guilt. Barca v The Queen (1975) 133 CLR 82 adopted and applied. The State v Tom Morris affirmed. The inference of guilt must rest on more than conjecture, but a bare possibility of innocence does not prevent conviction if guilt is the only inference reasonably open.
Where an accused gives no evidence and calls no witnesses, the court may draw the inferences that properly flow from the evidence, without being deterred by its incomplete state or speculating about what the accused might have said. Four rules, determined by common sense, apply. (1) Silence is not an admission and no inference of guilt may be drawn from it. (2) It may nonetheless tell against the accused by leaving the State case uncontradicted or unexplained on vital matters. (3) It becomes relevant only once a prima facie case is established. (4) Its weight depends on the circumstances, including whether the truth is probably known to the accused but not easily ascertainable by the State, whether the evidence is direct or circumstantial, whether the accused was legally represented, and whether a pre-trial explanation was given.
Applying those principles, guilt was the only rational inference open on the facts. The appeal was dismissed.
Did it make new law?
On circumstantial evidence the Supreme Court affirmed and applied the National Court’s statement in Morris, giving the Barca test the authority of the final court. On silence, the four rules were the Supreme Court’s own synthesis and have been quoted ever since without material change.
Why it matters
For the prosecution, it is not enough that the accused probably did it. Every reasonable innocent explanation must be excluded by the evidence.
For the defence, silence is a right, but it has a cost. An unanswered prima facie case is likely to be accepted, and a judge is entitled to say so.
For the judge, the judgment should identify the competing hypotheses and explain why each innocent one is rejected. Convictions have been set aside where that reasoning is missing.
What it does not decide
Pawa does not set the standard for identification evidence, which is governed by Beng v The State [1977] PNGLR 115, nor for the treatment of inconsistencies in oral testimony, dealt with in Devlyn David v The State (2006) SC881. It also predates the Evidence Act provisions on confessional statements and says nothing about them.
Recent cases applying it
- Dau v The State [2026] PGSC 79; SC2923 — the trial judge correctly drew no inference of guilt from silence, while noting that silence left vital parts of the State case unexplained; appeal against an official corruption conviction dismissed.
- Genamo v The State [2023] PGSC 143; SC2494 — Pawa applied; contradictions in the circumstantial case left reasonable doubt and a stealing conviction was set aside.
- Tongayu v The State [2023] PGSC 39; SC2380 — the Court endorsed the trial judge’s use of Pawa to analyse circumstantial evidence of forgery; guilt was the only rational inference.
- Nanuk v The State [2023] PGSC 74; SC2426 — silence cannot bolster a deficient prosecution case but may leave the State case uncontradicted; Pawa applied.
Sources
- Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (Kearney DCJ, Andrew and Kapi JJ, 27 November 1981)
- The State v Tom Morris [1980] PGLawRp 623; [1981] PNGLR 493 (Miles J, 28 May 1980)
- Constitution — s 37(4)(a), (10)
- Dau v The State [2026] PGSC 79; SC2923; Genamo v The State [2023] PGSC 143; SC2494; Tongayu v The State [2023] PGSC 39; SC2380; Nanuk v The State [2023] PGSC 74; SC2426
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