State v Failou [1981] PGNC 33; N336(M) (15 April 1981)

N336(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SIMON FAILOU

Mount Hagen: Quinlivan AJ
14-15 April 1981

CRIMINAL PROCEDURE - "NO CASE" submissions - submission that matter should have been dealt with "by administrative action", outside the Courts. - Separation of Function - "in court" and "out of court" sequences of the criminal justice process. - discretion to prosecute vested in "the proper authorities" and the duty of the court is to "hear and determine according to law" - Separation of Functions - "hearing" regarding whether guilt has been established and "hearing" regarding sentence.

INABILITY OF TRIBUNAL OF LAW TO LEGITIMATELY FORECAST HOW A REASONABLE TRIBUNAL OF FACT WILL DECIDE UNLESS THE RESULT IS "OBVIOUS". - Inability of Tribunal of Law to "weigh evidence".

FORGERY - "intent" not limited to pecuniary advantage or prejudice.

N.B. This ruling was made on 15th April, 1981 before the judgments referred to in the note on the front cover of N. 334 were made.

QUINLIVAN AJ: Mr. Kopunye, learned counsel for the defence, has just made a "NO CASE TO ANSWER" submission in this case and, since I am going to say in a moment that, had he had the opportunity to discover what is contained in certain recent judgments he would not have made that submission, I want to make it clear that it is not anybody’s fault that those judgments are not yet available. In particular, I want it made clear that Mr. Kopunye’s obvious concern that the course he is adopting is in some way wrong, is totally unwarranted.

With those opening remarks clearly understood, I can now proceed.

In this case the accused, a Patrol Officer, is charged with forgery. The prosecution case has closed and, when it did, Mr. Kopunye asked whether it would be possible for Counsel for both sides to approach me in Chambers. I, naturally, said that this was both possible and proper and the case was adjourned.

In Chambers Mr. Kopunye referred to what I had said in State v. Wapa Eala^[1] and, in particular, about the second part of both State v. Paul Kundi Rape^[2] and the 1962 Practice Note on No Case Submissions, and he asked whether I would be prepared to intimate whether, if he were to make such a submission in this case, it would succeed. This is a perfectly proper course and, since it reduces the possibilities that the General Public will feel that our legal processes are irrational, it is highly commendable - see my comments in State v. Herman Badegdeg.^[3]

Neither Mr. Kopunye nor I (nor, of course, Mr. Puaria, learned counsel for the prosecution) went into any details. All that was said is what I have already said Mr. Kopunye said and what I will now say I myself said. My reply was that the definition of "fault" (or "intention") which I had quoted in State v. Wapa Eala^[4] in his presence (and in State v. Lastin Inom^[5] and State v. Kegiyo Baiso^[6] out of it) from the judgment of Windeyer J. in Appeal of Timbu Kolian^[7] applied in two quite different ways. It required the Tribunal of Law to be satisfied that there was evidence of some degree of personal fault on the part of the person charged (except in the case of certain statutory offences of "strict liability", none of which were indictable) and it also allowed the Tribunal of Fact to convict if, on its view of the evidence when it came its turn to assess it, it felt that the accused had carelessly ignored the possible consequences of what he had done. This difference between the Tribunal of Fact and the Tribunal of Law was one of the many reasons why it was so essential that we realize the strict difference between the two functions, especially in a country where we now have no jury, I said. And I said that, because of this, I did not see that there was any possibility of my upholding, as Tribunal of Law, any submission that the Tribunal of Fact could not convict in this case.

Mr. Kopunye accepted that intimation of my opinion and the case was resumed. On the resumption Mr. Kopunye advised that the defence would "open its case" and that the accused would give evidence on his own behalf. He then spoke to his client and, whether it was as a result of what his client then said or whether it was the result of some new flash of inspiration or after-thought which occurred to him, Mr Kopunye then turned to the Bench and asked for an adjournment.

That adjournment was granted and, on the resumption of the case Mr. Kopunye reversed his course and, with an obvious degree of embarrassment, he said that he would, if he could, like to make the NO CASE SUBMISSION that he had apparently relinquished.

There is absolutely no reason why Mr. Kopunye (or anyone else in his position) should feel embarrassed at making that change in course - provided, of course, that the change is made "in time." Counsel is no more bound by the tentative advice which he or she receives than I am who give it. He or she is perfectly entitled to ignore that advice and, of course, after-thoughts happily do occur which make the advice really irrelevant because a further factor is suddenly remembered or a remembered aspect suddenly assumes a new importance and the whole perspective changes. And, with new material before me, I am perfectly happy - in duty bound, in fact - to announce a decision which is the opposite of what I said would be my decision when the material before me was different.

In this case, however, the material before me is not different from what was before me at the time I advised Mr. Kopunye that I could see no way in which I, as Tribunal of Law, could say that this case ought to be taken away from the Tribunal of Fact. It is, however, material which has apparently not yet been brought to the attention of Mr. Kopunye and, since he is a lawyer of very obvious capabilities and calibre, I feel that I should explain what is, in effect, an extension of what I have already said in In re Emmanuel Lavaki^[8] Appeal of Michael Dai Kaupa^[9] and State v. Lastin Inom^[10].

Mr. Kopunye’s submission, shortly stated, is that:

"although technically the offence of forgery by accused was committed it was not one in which moral responsibility attaches. ...

The interviewers were dissatisfied with not having received their pay (so) accused, knowing full well that the document was useless and that a new form had to be used, technically forged the document and threw it at the interviewers and just left it at that and went off to Tambul. ... no criminal responsibility could attach to him. Although technically the crime was committed, it was a matter that should not have been brought to Court. ...

I submit that it is not a case that should have been brought before the Court. It should have been dealt with by administrative action or arrangement."

Actually, there are three submissions here. The first is that the contents of the explanation which the accused gave to the police is "evidence" in the full sense of that word. As I said in State v. Wapa Eala^[11] the Judges Rules do say that the suspect must be told that, if he becomes an accused person, the whole of what he says to the interviewing police will be "used in evidence" but, unless I have to decide the matter - in which case I would expect full argument because, as far as I can see, it has never been decided here - I would prefer to say that the question of the true status of such material, and its weight compared to "ordinary evidence" as described by me in the Sorcery Appeal at Kainantu,^[12] is open for argument.

The point does not need to be decided here because of the other two essential ingredients of the submission. The second is that pecuniary advantage or detriment is the only thing which is covered by the Code. But Bismarck created a war by the forging of the celebrated Telegram of Ems and there are great advantages, and disadvantages, involved for people, and for nations, in a war. And the forging of certificates and credentials is usually aimed at something different from financial advantage although that is often an ancillary result. How am I, as Tribunal of Law in this case, able to say what a reasonable Tribunal of Fact might say about the throwing, at a group of pressing, irate, creditors, of a document like this and driving hastily off for a distant out-station. I, as Tribunal of Law am forbidden to usurp the function of the Tribunal of Fact because the time of its functioning, its purpose of existing, the rules which bind it and the fields in which it operates are all totally different from what controls me at this stage. And the integrity of our legal system depends upon me recognising, at all times, this fundamental feature of the Separation of Functions. Moreover, as I shall explain, this is the only real way in which the lonely Magistrate can function and it is an essential part of my function to make sure that I do not make more difficult - or, in this instance, impossible - the task of others performing essential functions in the criminal justice system. I will, as I have said, return to this because it is, in fact, involved in the third aspect of the submission - that is, the suggestion that I can do something, at this stage, because of what I shall call "Section 138".

I refer, of course, to section 138 of the District Courts Act which, as far as I know, has no equivalent in this jurisdiction. It allows a Magistrate, after he is satisfied that a person charged is guilty of an offence, to dismiss the charge and release him without a stain on his record, if there are "extenuating circumstances" or for a wide variety of other reasons. And this, to a marked degree, is the true basis of the submission here. But section 138 only applies where the Court is satisfied that the person accused is actually guilty and does not come into operation at this stage of the court segment of the criminal justice proceedings.

It is those last words: "the court segment of the criminal justice proceedings" which are the guiding principle here, not the fact that Judges do not appear, statutorily, to have the power which is vested in Magistrates by section 138.

Mr. Kopunye has submitted that this is "not a case which should have been brought before the Court. It should have been dealt with by administrative action or arrangement" and this, in fact, sums up his application. But if he had access to what I have said in In re Emmanuel Levaki,^[13] Appeal of Michael Dai Kaupa^[14] State v. Wesley Molgime^[15] or State v. Lastin Inom^[16] - or to any of my lectures in several institutions - I am sure that he would not have made this submission. Not to me, at any rate, who have been both Chief Crown Prosecutor and the man who was appointed the first Public Solicitor. And who then became, amongst other more obvious things, the "independent, high level, legal adviser" to those Public Office Holders whose statutory duties required them, at times, to make decisions which were unpopular with the current attitudes of people in power. But, as I have said, the fact is that, due to a shortage of typing facilities at the Court, these judgments are not yet available. Mr. Kopunye does not know their content nor - since he is one of the few National lawyers I had never met until this circuit - can he have known that I am a stickler for every "function" of the legal system being performed properly, and for absolute non-interference by one "arm" of Society in the exercise of the functions allocated to another arm.

At one level of thought this is a basic proposition which is easily accepted by every lawyer. To me, however, it is a basic principle which too many lawyers do not fully appreciate and their easy acceptance is, for this reason, dangerous. And, because of this, the essential nature of what Kelly J. was saying in R. v. Dodd^[17] - which I believe to be the basis of the present submission - becomes misunderstood.

I am, of course, not talking about Mr. Kopunye when I talk about "easy acceptance" and the misunderstanding of what Kelly J. was saying. He is a young lawyer of enterprise and tenacity and, having exhausted one line of approach on one client’s behalf in State v. Wapa Eala,^[18] he has had an inspiration, while defending another client, which does not in any way canvass my ruling in that case because it involves a totally different approach. And, as the Full Court of the Supreme Court of Queensland pointed out in Smithers v. Andrews, ex parte Andrews,^[19] it is an essential part of our criminal justice system that, if the accused can have the case against him lawfully terminated without him having to go through the trauma (and, even where the wrong man has been charged, the danger) of giving evidence, so much the better. Moreover, it is a submission which appears to get over the problem of the Tribunal of Law "usurping the function of the Tribunal of Fact" which Phillips C.J. talked so much about (see State v. Wapa Eala^[20] and R. v. Ava^[21])

When one looks more deeply at the situation, however, it becomes clear that Kelly J. was talking about a situation which is vastly different from that which we are facing here. He was talking about a situation where:

"the jury might ... indicate that it did not require to hear evidence for the defence and acquit at that stage."^[22]

and this, of course, happens. But it is perfectly proper for the jury to do that. That is within their function. And, if it becomes clear to the Judge that the jury are, all of them, getting restless at what they regard as a sort of "crucifying" of a fellow citizen by the authorities, it is perfectly proper for the Judge to say to them:

"In law, I have to tell you that there is evidence on which you could convict but the decision as too whether you do convict is, of course, entirely yours. If you think that you will not convict on the evidence you already have - and the prosecution have now said that that is all they have - there is no reason why you should draw out the traumatic and expensive process any further."

But let us be perfectly clear here. As Phillips C.J. used to say in practically every case - and as I, elsewhere and in practically every case, have said because he taught me - there is a world of difference between being in the presence of a body of twelve ordinary citizens who are obviously getting more and more irritated and being a person, exercising the dual functions of Tribunal of Law and Tribunal of Fact, who gets irritated. It is precisely because we all become irritated for the wrong reasons that the law requires (as Chesterton said Christ required) a panel of 12 so that, by having a cross-section, the peculiarities and idiosyncrasies of the individual - the headstrongness of a Peter, the weakness and simple-minded dedication of a John, the avarice and selfishness of Judas; the broadmindedness of this one and the puritanical hang-ups of that - can be evened out and the person trundled before the Court obtain the "independent and impartial" justice that the law (and our Constitution) guarantees that he shall receive.

The very fact that the individual feels a gut-reaction makes it mandatory that he or she ask a highly personal question:

"This is how I feel. But is it the way I honestly believe a reasonable jury of twelve Hagen villagers, (or, since there appears to be uncertainty now on the point, "twelve ordinary men and women") none of whom is any way involved, would vote if we happened to have a jury here? Am I prepared to stake my reputation on giving a certificate that that is the way I think a reasonable Tribunal of Fact would have to decide?"

It is a self-denying ordinance that every judicial officer is required to make and it makes our task, where we do not have a jury, that much more difficult than it is for Judges where a jury in fact exists and where it is a basic part of every citizen’s duty to be available to decide questions of fact. It is a self-denying ordinance that requires an extra effort of self-discipline. But both of these are possible - as is shown by the fact that they are required in over 90% of criminal cases dealt with in those countries where there are, in fact, juries. And, on the credit side, it is a mental discipline that gives us the nearest approach to a reliable yard-stick that is possible in human affairs. It gives us two additional things of immense - incalculable - value also.

The first is that it makes the task of deciding questions of fact - a task which often appears impossible and yet is one which the General Public expects to see performed before its very eyes - manageable. The second is that, the Judge or Magistrate having deliberately "got outside of himself", as it were, and made his/her honest attempt to decide how a reasonable jury would have decided if there had been one, it means that there is really no need for the fear which, as I mentioned in Appeal of Tomi Orabi^[23] and elsewhere, was introduced into this country in the late 1960s and ‘70s.

In R. v. Dodd^[24] his Honour clearly had in mind (although the report does not make it clear that he articulated it) a situation which is "common" in a highly restricted way. It is common in the special sense that, in those very rare cases where the jury has clearly become exasperated with what they regard as an unjust trial - if it is clear that they have had as much as they feel they can reasonably be asked to take under their enforced duty to see that the criminal justice system functions in the way it should - the judge will, very properly ("commonly") release them from further endurance of a case in which the criminal justice system has clearly not been functioning properly. It is, in fact, a statistically rare occurrence which arises because of the fact that a real jury (as distinct from a "notional" one) can, in quite a number of ways, show its feelings. It is perfectly true that such situations also occur where there is no jury and it is clear that his Honour was dealing with one of them. This, however, does not change the fact that such a situation is (or should be) statistically rare or erect into a principle of general application something which is highly exceptional. And I have not the slightest doubt that text of the case on which his Honour was relying (Benney v. Dowling [1959] VicRp 41; 1959 V.R. 237 becomes available, this fact will be obvious^[25]. In this regard I would like to adopt, with respect, these words of Kapi J. in State v. Aige Kola^[26].

"the principle stated in Reg. v. Dodd ... may be followed where at the end of the prosecution case, it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt ... and not otherwise." (my underlining)

The reference to cases where it is clear that the criminal justice process is not functioning properly, and to the need for every "function" to be performed properly, brings me to an analysis of that system. We start with someone’s belief that some person has committed an offence. If an allegation that this has happened is made to a magistrate in the Complaints Room it is his/her duty to say: "I cannot deal with that. You must go to the Police (or to the Health Inspectors, the Prices Controller, the Customs Officer and so on)". This is not a matter of shirking responsibility. It is an acknowledging of a very basic fact which is that we abolished the Inquisitorial System (in which many different functions were rolled into one) many years ago and different "functionaries" now perform different tasks in order that the criminal justice system shall work

We have allocated out to the Legislature the task of deciding what conduct shall be regarded as an offence. And, in Appeal of Michael Dai Kaupa^[27] I gave the text of the most famous statement regarding the question of whether, simply because someone can be proven to have committed an offence, he must be prosecuted (and see Appeal of Smedley,^[28] and In re Emmanuel Lavaki)^[29]

Let us then assume that Parliament has decreed that the conduct complained of shall constitute an offence. As Phillips C.J. said in R. v Flugentius Tuvi^[30], it is not for any court to question the wisdom or propriety of the official acts of those to whom the legislative function has been lawfully entrusted. Because of the changed situation since those days - and, in particular, the requirement that the Supreme Court declare whether certain statutes are constitutional - the blanket coverage of the statement must be reduced but its general correctness remains unchanged. Let us next assume that the proper authorities have decided that they should lay a charge in this particular case.

It is perfectly proper for counsel for a person against whom an allegation has been made to endeavour, by lawful and ethical means, to get the proper authorities to view the matter in a way which is favourable to his client. And, if his client is a diplomat, for instance, it is his or her positive duty to do what he or she can to prevent a charge being laid. To take other examples, there is a right, amounting in some countries to a positive duty, to raise an alibi. There are such things as mentioning that (as I said in Appeal of Michael Dai Kaupa)^[31] the matter is really a "domestic" dispute and the criminal justice process is being used for private ends. Or, as I also mentioned in that case, it is being used - or may be used - for political ends which could bring the administration of justice into some form of danger or into disrepute. And it could well be that, by such lawful and ethical overtures, the proper authorities decide to refrain from laying a charge or to withdraw one which has already been laid. That is all perfectly proper while the functionaries who are in charge of the decision-making processes are partisan and have the constitutional function of deciding whether or not a charge shall be laid or proceeded with.

Once the case is before a Court, however, it becomes improper for the Court to comment on the propriety of the laying of the charge - except, of course, in so far as it appears that, because of the nature or weakness of the evidence, the processes of the Court are being abused in some way. In another jurisdiction I quoted from a modern comment by Lord Denning which I will^[32] include here when this judgment is typed but, shortly stated, the fact is that the court is, to a large extent, a captive in the hands of the prosecution authorities and it must hear and determine any charge which they see fit to lay - but to hear it according to law which means, as I mentioned in Appeal of Michael Dai Kaupa^[33], with the presumption that the accused is NOT guilty always in mind (until he has been proved guilty according to law) and in accordance with many other rules, all of which the prosecution must be deemed to have intended shall apply when they chose the charge which they decided to lay.

This holds true for the whole of the sequence of stages during which it is the court’s duty to "hear and determine" the case - with a special emphasis on the fact that, during the first of those stages the court, if the offence is "indictable", cannot even "determine" the case except at the end of a special sequence.

Before we look at this, let me recapitulate. There are a large number of different stages in the criminal justice process and only some of them occur in court and only some of those which occur in court are devoted to the process of "hearing and determining". We, at present, are engaged in the "hearing and determining" sequence but before that, there were stages when decisions could quite properly be made on the basis of "administrative convenience", "abstract justice", "common decency", "mercy" and the like. And after the "hearing and determining" stage (if the accused is convicted) there will be two more stages, one an "in court" stage - the ALLOCUTUS - and the other an "out of court" stage (called the Committee of Mercy) and in both of these the factors which Mr. Kopunye has referred to can again come into focus and have their effect. But during the pre-conviction "in court" stage the oath is to deal with the accused according to law.

The people in the Public Gallery may say: "But is that not rather harsh?" The answer is, of course, that the experience of great lawyers over a very long period of time is that it is not. In fact, I myself would ask: Where would you find a system which was more keenly devoted to making sure that the citizen is dealt with, as the Constitution says, "fairly"? In a recent speech the Chief Justice of the United States of America said (TIME news-magazine, 23 February, 1981 page 69) that the "massive safeguards for accused persons" built up over recent decades (in that country) are harmful but, with respect, that is because a large number of uncertainties had been allowed to creep into the administration of justice and, instead of things being done according to a set and certain plan, there were all the dangers of chaos which needed to be remedied. Our system, with all its defects, is still relatively simple and clear-cut.

There is, first of all, the allegation or complaint or the seeing of an offence apparently being committed, This, as I have said, involves the clear possibility of the prosecution authorities exercising their discretion to NOT prosecute.

Then, if there is an arrest, there is the clear duty for the prosecution authorities, at the first reasonable occasion, to tell the arrested person that if he has anything to say in answer to the charge, what he wishes to say will be recorded without interruption or perversion and given "in evidence" in court if the case goes on to trial.

Then there is, a second time, the occasion for the exercise of the discretion to prosecute. The explanation made by the man under arrest may throw a completely new light on the situation and it is no function of the law to hold someone in custody if a mistake, no matter how honourable or reasonable, was made. So the Station Commander makes his entries in the Station Occurrence Book and either allows an Information form to be made out or he directs the Prosecutor to tell the Magistrates that Mr. X.Y. was arrested at 9.23 p.m. last night ("and here is the entry in the Station Occurrence Book") and he was released at 11.29 the same night and the Police do not wish to proceed in the matter so no Information will be presented. The Magistrate has had the matter reported to him and the necessary entries are made in the Station Occurrence Book and that is the end of it unless the man who was arrested wants to take a civil action against the Police.

If, however, an Information is handed up to the Magistrate the position, except for one remaining possibility, changes. Once the Information is accepted by the Court it can only be withdrawn or dismissed by order of the Court - although I see that there is a move to change this. If the Information is for an "indictable" offence (as in this case) the Magistrate sets a date for the Preliminary Inquiry and the "proper authorities" then make their third deliberate decision as to whether to go on with the case or not, bearing in mind:

(i) the need to have sufficient admissible, believable, evidence to secure a conviction and

(ii) all the factors - including the accused’s statement, his personal characteristics and background and the characteristics and background of the particular offence, and so on - which might indicate whether a prosecution would be in the public interest or not.

And, if they decide that the case cannot succeed or that it should not proceed for any other reason, they then "beg leave" to withdraw the Information. If they do this the Magistrate normally "grants leave" but the simple fact that "leave" has to be applied for - and the fact that the Magistrate can ask for a reason to be given so that it can be endorsed in the Court Record - is a control mechanism which, in other countries, has always been highly regarded.

The point is that our system is filled with these "control-mechanisms", these fail-safe checks-and-balances. And, from what I have said, it should be clear that if there are outside reasons why the case should not go on, there has been ample opportunity given for those reasons to be brought to the notice of the proper authorities. Now the matter is in the hands of the Court and those matters are totally irrelevant until the ALLOCUTUS is reached.

There are, however, a number of checks and balances which come into play before that stage is reached and some of these are in the hands of the Court and some are in the hands of the prosecution authorities. The first is that, at the close of the prosecution case the Magistrate conducting the Preliminary Inquiry has the duty of deciding whether there is a "prima facie" case made out. If there is not, the accused person is discharged from further proceedings under that Information - but, since he has not been "in jeopardy", it would be possible for him to be charged again or for an ex officio indictment to be presented in the higher court which is seized of the matter. That stage, of course, is restricted purely to an examination of whether there is evidence to cover each point and the rule (which I mentioned in The Kainantu Alibi Case^[34]) of Duffin v. Markham^[35] and Royal v. Prescott-Clarke^[36] applies. Then, if the Magistrate rules that there is a prima facie case the defendant is given the statutory warning and, at the end of the Preliminary Inquiry, the Magistrate has to decide whether or not to commit the defendant for trial. And, in regard to that last decision of the Magistrate, it was HELD in R. v. Wewak Resident Magistrate, ex parte Dwyer^[37] that:

"If he forms the view that the evidence called before him is clearly ... worthless ... it seems consonant with good sense and justice that he should discharge the defendant forthwith."

(a proposition which, with respect, is similar to that expressed by Kapi J. in State v. Aige Kola^[38] and adopted by me at p. 9).^[39]

So far there have been three "out of court" stages at which the prosecution authorities have had to take note of the peculiar circumstances of the person arrested (in Campbell’s Case which caused the downfall of the first Labour government in Britain, the defendant was war-hero who had been crippled in the defence of his country and he was now being charged with disloyalty). At each of these stages an overture could have been made to have the case stopped. There have also been two "in court" stages in which it would have been quite improper for the court - which had the duty to study the evidence, and the evidence alone to see whether the case should go on - to take account of "outside matter matters" such as those relied upon here. And at every one of those stages the decision was that the case should go on. The papers are now forwarded to two officials who have the statutory duty (and the professional expertise) to study the whole of the circumstances of the case - and of the man accused - and one of them, the Public Prosecutor, has to decide, anew and on behalf of Society, whether the case should be prosecuted in this Court upon indictment.

It is clear that, in the making of that decision the Public P Prosecutor is just as open to suggestions from counsel for the defence that the decision ought to be exercised so that the prosecution is stopped as were the prosecuting authorities at the lower levels at the very beginning of the process. More so, in fact, because the full extent of the admissible evidence is available to him, the furore which may have attended the original charge has had a chance to die down and he is now dealing with the Public Solicitor. Moreover, the possibilities for legitimate "plea bargaining" under s. 572 (a) of the Criminal Code are now open whereas they were previously forbidden. It is at that stage that the submission that (and I quote) "the case ought to (have been) dealt with by administrative action" ought to have been made, not at the end of the next stage, which is an "in court" one where I am exclusively exercising the functions of a Tribunal of Law.

In saying that the submission ought to have been made at that and not at this, I am not implying any dereliction of duty on the part of Mr. Kopunye. In fact, I admire and sympathise with him in his attempt to deal with a very real problem which must face many people in his position. Nor am I, in what I am about to say, to be taken as criticising the Public Solicitor’s Office in any way. The fact is, however, that that Office was, to a very large extent, established as a result of the Tapini Incident Report which I wrote in 1957. There, I recommended the setting-up of a separate corps, of defence lawyers who should, I said, conduct each circuit in pairs, each leap-frogging the other to the town ahead. Nowadays, when "circuits" only go to one or two places the thought behind this suggestion may be obscure. When it was made, however, each circuit went to as many places as possible, staying in each town (and often sitting into the night) until there were no cases left. And no indictment was ever presented expect in the presence of the accused person and always as the prelude to an immediate trial if there was no clear plea of guilty. By the process of having Mr. A (who was counsel for the defence in "town A") avoiding town B where the court was due to sit next week, and going straight to C, the next town on the circuit (where the Field Staff had assembled all the possible witnesses for the defence, as was - in those days - their habit and duty) he would be able to prepare his case thoroughly and speak to the Prosecutor before the Court arrived and before the indictment was drawn.

I appreciate the fact that this procedure involved double staff and so was not adopted. That is a pity because it means that the legitimate overtures which the system envisages cannot be made in all cases. It means that Mr. Kopunye has had to undergo the problems which he has faced here.

The fact is, however, that the Separation of Functions is of vital importance and it is, moreover, an inviolable principle on which our system is based.

I can neither usurp the function of the Tribunal of Fact by attempting to "weigh" the evidence (as I said in State v. Herman Badegdeg ^[40] and State v. Wapa Eala^[41]), nor can I usurp the function of the Prosecution Authorities. The submission must, for these reasons, fail.

SUBMISSION OVERRULED AND REJECTED.
ORDERED THAT THE TRIAL PROCEED.

N.B. The Accused gave evidence and the case was dismissed, a VERDICT OF NOT GUILTY being announced.

Solicitor for the State: L. Gavara-Nanu Esq. The Public Prosecutor.
Counsel: K. Puaria Esq.
Solicitor for the Accused: A. Amet Esq. The Public Solicitor.
Counsel: P. Kopunye Esq.

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^[1] Unreported judgment, HAGEN, 10th April, 1981. Issued as N335.
^[2] [1976] PNGLR 96.
^[3] Unreported ruling, WAIGANI, 13th March, 1981 ... N334 pp 3,6.
^[4] See 1. above
^[5] Unreported judgment, GOROKA, 24 February 1981, issued as N329.
^[6] Unreported judgment, GOROKA, 24 February 1981.
^[7] [1967-1968] PNGLR 320 at 327.
^[8] Unreported ruling, WAIGANI, 12 January, 1981, issued as N324.
^[9] Unreported judgment, WAIGANI, 20 January, 1981 now N320.
^[10] Unreported judgment, GOROKA, 24 February, 1981, now N329.
^[11] See 3. above.
^[12] State v. Lupiteria Ezo, Unreported judgment, Kainantu.
^[13] See 7 above.
^[14] See 8 above
^[15] Unreported judgment, GOROKA, 9th February, 1981, issued as N328.
^[16] See above at 9.
^[17] [1971-1972] PNGLR 255.
^[18] See above at 3.
^[19] 1978 Qd. R. 64 at p. 66.
^[20] See above at 3.
^[21] Unreported judgment, Port Moresby, 13. 2. 1956, bound as 81 (pages 1 - 5) of Vol. 2 of Supreme Court Judgments.
^[22] [1971-1972] PNGLR 255 at p. 256 para 1.
^[23] Unreported judgment, KAINANTU, 9th February, 1981 ... N323
^[24] [1971-1972] PNGLR 255.
^[25] The relevant passage is added at the end of this judgment.
^[26] Unreported judgment, KUNDIAWA, 8 December, 1980 ... N209. The passage is at page 3, first paragraph.
^[27] See above at 8.
^[28] Unreported judgment, WAIGANI, 31st October, 1980, issued as SC182.
^[29] Unreported ruling, WAIGANI, 12th January 1981, ... N324.
^[30] RABAUL, 1953. Reported in "Q Reports"
^[31] See 8 above.
^[32] The case was "In re Mr. "X". The statement by Lord Denning is given in my judgment in State v. Aida Vanaliu, RABAUL, 25 August 1981 which was "handed down" as N 331.
^[33]
[34] State v. Waikaiko Taunitawe, Unreported judgment, KAINANTU 20th February, 1981, still to be issued.
^[35] 1918-1919 All E.R. reprint extension volume, p. 206 (1404).
^[36] (1966) 2 All E.R. 366.
^[37] [1967-1968] PNGLR 511 at page 517
^[38] Unreported judgment, KUNDIAWA, 8th December, 1980 .. N. 209.
^[39] And in N334 at page 5.
^[40]
[41]