Police v Pu'u (No 1) [2002] PGDC 42; DC296 (13 December 2002)

DC296

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 73 OF 2002

Police
Complainant

V

Andreas Pu’u
Defendant

Mt. Hagen: M. M. Pupaka
2002: 05th Nov., 03rd Dec

Criminal trial – Trial of accused commencing without legal representation – Part heard prosecution case – Council engaged midway through prosecution case – Application for retrial and or recall of prosecution witnesses.

Criminal trial – Retrial – Only when there has been a mistrial resulting in miscarriage of justice – Consequently retrial rejected but recall of witnesses allowed.

Counsel
Senior Constable Giwoso for the Prosecution
Mr Tumun Kuma for the accused

13th December 2002

M. PUPAKA, PM: The accused Andreas Pu’u was charged that he on the 18th of August 2002, drove a motor vehicle, a white coloured (with stripes) Mitsubishi L200 (4x4) Reg. No. BAN 409, upon the Kunjip /Banz Road dangerously causing the death of one Kugame Temne, thereby contravening section 328 (5) of the Criminal Code, (the Code).

The accused pleaded not guilty. In the ensuing trial the prosecution called three (3) witnesses. The first two were called on the 05/11/02. The accused, having been informed and advised of his rights to cross-examine the witnesses, in fact did cross-examine them. The last prosecution witness, the police arresting officer, was called on the 3rd of December 2002. The accused cross-examined him, but only as to certain aspects of the arresting officer’s evidence. The accused did not take issue with some of the vital aspects of the policeman’s evidence. Therefore when the accused said he would rest from cross-examining that witness, I asked him if he thought he had done enough to traverse all vital aspects of the witness’s evidence. Having noted the hint and perhaps sensing danger, the accused asked for an adjournment to seek legal assistance.

The accused’s cross-examination of this (3rd) prosecution witness was not quite completed, but it was obvious he needed the services of council, considering particularly the evidence just given. An adjournment was granted to the next day (4th December) for the accused to engage council.

On the 4th Mr Tumun Kuma of Paraka Lawyers was in attendance with the accused. Council then pointed out that he wound be seeking a retrial. He was directed to formally apply for a retrial. The matter was adjourned to the 06th (of December 2002) for the application to be properly made. The formal application, by way of a written submission, had been filed and was then on the court file on the 6th of December. I have taken time to consider this submission. What follows next is this Court’s ruling upon the application for a retrial or alternatively a recall of all prosecution witnesses for them to be subjected to proper cross-examination by council.

The Application /submission

The essence of the application is as stated in the words of council in the fore part of his submission:

"The basis of our application is that certain important elements of our client’s defence have not been properly and clearly established due to the reason that our client did not have benefit of a legal representation whereby those important elements or aspects of his defence could have been established during the cross examination of all important and key state witnesses."

Council than rounds of his submission this way:

"It is our submission that because the accused did not have legal representation at the time of cross examination of state witnesses, he was not able to clearly establish the important elements of his defence. It is the accused’ constitutional right to a fair trial whereby he must be able to properly defend himself. He did in fact cross examine the witnesses but what we are saying is he did not have the ability to question and challenge the allegations against." (sic).

I would agree that the accused could have done better with the assistance of council. He would have at least laid out the grounds of his own defence through the process of cross-examination, which incidentally he has not. He would have thereby complied with the imperative in Browne –v- Dunn ([1894] 6 R. 67 H.L.), which again he has failed to do. Also council seems to have noticed the apparent failure of the accused to cross-examine the prosecution witnesses thoroughly, especially raise issue and perhaps object to some of the evidence of the 3rd witness, which is why he has made this application.

It does seem that the standout features of this trial up to this point are the failures of the accused, more than any other aspect or considerations. Nevertheless, in all the circumstances, is a retrial or a recall of all the witnesses proper or warranted? And in any case how must this case proceed henceforth? I detect these to be the issues before me now.

Recall of the Prosecution witnesses

First of all the 3rd prosecution witness, Police Constable Alex Kali, does not need to be formally recalled. He has not completed testifying. He was not excused from testifying. When the Court resumes sitting this witness will be in the dock, ready to continue testifying. In fact when the Court last adjourned on the 3rd of December 2002, he was advised that he would continue to testify when the Court resumed. It was also pointed out to him that he was still under oath.

It is a bit different with the first two witnesses, who would, if it were possible, need to be recalled. They have completed testifying and were stood down after all the process of examination of these two witnesses was completed.

However whether these two witnesses could be recalled is depended on there being lawful cause shown for their recall. As to what may amount to lawful cause would depend on the circumstances, but such instances where recall of witnesses would occur are limited to perhaps predictable instances only. This is for fairly obvious reasons, I should add. There has to be finality to court proceedings. The process ought to be guarded against abuse. Recall of witnesses can occur only in appropriate instances, where there is a clear need for recall, especially in the interest of justice and in fairness to the party concerned. Recall of witnesses or rehearing of the witnesses as it were, is not to allow those who appear before the courts as parties, either in civil or criminal proceedings, to have ‘a second bite at the cherry.’

In this case the first two prosecution witnesses were called on 5th November 2002. The accused sought no adjournment to engage council. He was, by all appearances and indications, quite content to proceed. The accused had no trouble cross-examining those witnesses too. Then about a month later, on the 3rd December 2002, the prosecution called their 3rd witness. I would also say the accused did not seek an adjournment before this witness was allowed to commence testifying. The accused proceeded to cross-examine the witness after the prosecutor had examined him in chief. After being satisfied that he had done enough the accused said he would rest. That was when the Court intervened and hinted that perhaps the accused would like to further cross-examine the witness in relation to some other, perhaps more vital, aspects of the witness’s evidence which he had left untraversed.

The accused, it should be noted for the record, was never ‘short changed’ as regards his rights at any time by any one. He was on bail, and that well before he was first arraigned. He had all the opportunity to seek legal advice and engage council, both before the trial and after commencement. He made use of his right to cross-examine witnesses. The fact that he had no legal representation from the beginning was his choice. No one has infringed upon the accused’s right to a fair trial, including his right to a lawyer of his choice. There is no manifested unfairness to the accused in these regard. It could be validly argued too that it is neither in the public interest nor is it in the interest of prudent management of court business to allow court proceedings to be undone, redone, or ‘corrected’ to suit, at best, the convenience of one party. It should be repeated as often as is necessary that the process of court ought not to be allowed to be abused or a party allowed to have the ‘second bite at the cherry’.

Having said all that are the circumstances herein, including the conduct of the accused, such as to be not in the public interest to allow the prosecution witnesses to be recalled? I would not think so. There is an element of unfairness about not allowing recall of the witnesses for them to be thoroughly cross-examined by council, whereas there is no prejudice to the prosecution and only minimal inconvenience caused. In any case the obvious need for a proper cross-examination was what caused the Court to intervene and prompt the accused in the first place. It is not as if, by allowing the recall of witnesses, the accused would be granted any added advantaged, though I should be quick to add that if an application such as this were principally to obtain any advantage lost or not secured in the first place, and if there is sufficient prejudice or disadvantage manifested to the prosecution, I would refuse to grant the relief sought.

However in this case the 3rd prosecution witness is still in the witness stand. He did not complete testifying, so he was not stood down. The first two witnesses have been stood down but they have not been excused. They could be recalled, if it is necessary to have them recalled in all fairness.

Retrial

Retrial of a proceeding, in its full legal context, is restart of a trial in a matter, whether after there has been a complete trial or at any stage of an already commenced trial. It would mean a complete rehearing of any witness already heard. Retrial of cases has been ordered where there had been a mistrial or some other such fault in the process which has resulted in miscarriage of justice.

Here it is not submitted that there has been a mistrial or there has been miscarriage of justice, much less is there any evidence of a mistrial or miscarriage of justice. Ergo there is no lawful or equitable cause for a retrial. Consequently I would reject the application for a retrial.

Ruling

In light of all the foregoing discussions, I would refuse the application for a retrial but I would allow the first two prosecution witnesses to be recalled and the accused, through council, have occasion to properly cross-examine them. I would, in all fairness, allow the prosecution to have the chance of re-examining the witnesses if they so desired after any such cross-examination. I rule accordingly and direct that this matter from henceforth proceed accordingly.

Paraka Lawyers: Complainant
Senior Constable Giwoso: Defendant