Tugein v Gotaha [1984] PGNC 47; [1984] PNGLR 137; N487(M) (25 May 1984)

N487(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OSCAR TUGEIN

V

MICHAEL GOTAHA

Lae
Bredmeyer J

11 May 1984
25 May 1984

APPEAL - New trial - When retrial should be ordered - Relevant factors - Appeal from District Court.

EVIDENCE - Admissibility - Statements made in court - Use in subsequent proceedings - Not admissible as judicial document on proceedings - Methods of tendering - Evidence Act (Ch. No. 48), s. 44.

In proceedings for assault against a police officer depositions of a previous court case containing an admission were tendered to the magistrate who admitted them in evidence under the Evidence Act (Ch. No. 48), s. 44, which provides that "evidence of a judgment, decree, rule, order or other judicial proceeding" is admissible by production of a certified copy: On appeal against conviction.

Held

(1) A statement given on oath in another court, that is, a deposition, is not a "judgment, decree, rule, order or other judicial proceeding" within the Evidence Act (Ch. No. 48), s. 44, and is not admissible thereunder.

Discussion of methods by which evidence given in one court may be proved in another court.

(2) The wrongful tender and admission of the depositions, when considered with the fact that it was the only evidence in support of the conviction and that the appellant/defendant was unrepresented at the time it was tendered, amounted to a substantial miscarriage of justice and the appeal should be allowed.

(3) In determining whether or not a retrial should be ordered the following matters (inter alia) may be relevant:

(a) The public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;

(b) the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;

(c) the seriousness and prevalence of the particular offence;

(d) the consideration that the criminal trial is an ordeal which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so;

(e) the length of time elapsing between the offence and the new trial if ordered; and

(f) the strength and availability of the evidence.

Reid v. The Queen [1980] A.C. 343 at 350; [1979] 2 All E.R. 904 at 908-909, adopted and applied.

(4) In determining whether or not a retrial should be ordered the weight to be given to any relevant matter will depend not only on the particular facts but on the social environment in which criminal justice falls to be administered.
Reid v. The Queen [1980] A.C. 343 at 350-351; [1979] 2 All E.R. 904 at 909, adopted and applied.

(5) In the circumstances the public interest involved in the principle that police suspected of unlawfully assaulting persons in the course of their duties should be charged and tried, outweighed all contrary factors, and a retrial should be ordered.

Cases Cited

McGregor [1968] 1 Q.B. 371; (1967) 51 Cr. App. R. 338.
Pallante v. Stadiums Pty Ltd (No. 2) [1976] VicRp 32; [1976] V.R. 363.
R. v. Oliver [1968] VicRp 27; [1968] V.R. 243.
Reid v. The Queen [1980] A.C. 343; [1979] 2 All E.R. 904.

Appeal

This was an appeal against conviction and sentence of twelve months’ imprisonment imposed on the appellant, a police officer, for assault.

Counsel

M. Sevua, for the appellant.
L. Henao, for the respondent.
Cur. adv. vult.

25 May 1984

BREDMEYER J: This is an appeal against a conviction and sentence imposed by the Lae District Court on 11 April 1984. It is an appeal against a conviction and sentence of twelve months’ imprisonment with hard labour imposed on a policeman for assault. The trial magistrate also recommended the policeman’s dismissal from the force.

The main piece of evidence against the defendant was an admission in a previous court case which became exhibit D. The admission is as follows:

"Q. You told the Court you took part in assaulting the defendant. Why? A. I saw others did it so I did."

The question refers to a previous admission which is not however in the transcript of exhibit D. The transcript may be defective in that regard.

That previous deposition was tendered under s. 44 of the Evidence Act (Ch. No. 48) which reads as follows:

"44. Judicial proceedings.

Evidence of:

(a) a judgement, decree, rule, order or other judicial proceeding of:

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(ii) a Judge, justice or magistrate of any such court; or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and:

(c) proved to be an examined copy of it; or

(d) purporting to be sealed with the seal of the court; or

(e) purporting to be certified as a true copy by a registrar or chief officer of the court."

I am told that the deposition tendered to the District Court was the original one although the one produced to me on this appeal was a copy.

I consider that s. 44 has no application to an admission made in evidence in another court. That admission was contained in a statement given on oath in another court, that is in a deposition. That deposition is not a "judgement, decree, rule, order or other judicial proceeding" so s. 44 has no application. If a prosecutor wishes to prove what was said in another court he can do that in a number of ways:

(1) By consent he can simply hand up the deposition.

(2) If the witness has given evidence at a committal and is dead, too ill to travel, or kept out of the way by the defendant, or is a doctor who cannot conveniently attend the court, his District Court deposition can be tendered under the District Courts Act 1963, s. 109.

(3) At common law if evidence was given in a former trial between the same parties then it can be received in a later trial if the following conditions are satisfied:

(a) the witness whose evidence is now tendered must have been duly sworn in the former proceedings;

(b) there must have been full opportunity in the former proceedings for cross-examining the witness whose evidence is now tendered;

(c) the issues between the parties must be substantially the same in both proceedings;

(d) the witness whose evidence is now being tendered must be incapable of being called in the subsequent proceedings. He is held to be incapable of being called where he is:

(i) dead;

(ii) insane (even if only temporarily);

(iii) seriously ill; that is so ill that the situation cannot be dealt with by merely adjourning the trial for a reasonable time;

(iv) kept out of the way by the opposite party.

The evidence from the former, may be proved in the later, proceedings from notes of evidence or from memory: normally it is done by tendering the court reporter’s transcript: see Wells, An Introduction to the Law of Evidence (3rd ed.), pars 10.66, 10.67. A similar statement of the law is found in Cross on Evidence (2nd Aust. ed., 1979), par. 18.141. Numerous English authorities are cited there plus a recent Australian one, Pallante v. Stadiums Pty Ltd (No. 2) [1976] VicRp 32; [1976] V.R. 363.

(4) The normal way is by calling a witness who has heard the evidence — for example the magistrate, prosecutor or a shorthand writer (if there is one) or some other person present in court. An example where this was done is the case McGregor (1967) 51 Cr. App. R. 338. The headnote reads as follows:

"The appellant and his wife were charged jointly with receiving. At the first trial, at which the jury acquitted the wife, but disagreed with regard to the appellant, the appellant had stated on oath that he had had possession of the goods stolen and had put them in his wife’s shopping bag (where they were found by the police when a car of which the appellant was the driver and in which the wife was a passenger had been stopped). At the retrial of the appellant the prosecution called a police officer who had been present, at the first trial to prove these admissions by the appellant. A transcript of the evidence of the first trial was supplied to the defence and depending counsel cross-examined the police officer to bring out further statements and explanations on the part of the appellant. The appellant did not give evidence at the retrial.

Held, that the admissions by the appellant on the first trial were properly admitted in evidence on the retrial since they were clearly evidence of possession, nor was the admission of the evidence unfair in the general circumstances of the administration of justice."

(5) The depositions may be put before the court by way of affidavit but that is subject to the limitations of s. 34 and s. 35 of the Evidence Act. Normally five days’ written notice must be given to the other side and that party can object to the affidavit and can require the deponent for cross-examination.

In this case the defendant, who was unrepresented at the time of tender of the depositions, did not consent to the tender and even if he had, he, being unrepresented, might not have appreciated the enormous significance of the tender. The admission contained in the depositions was of great importance because there was very little other evidence to justify the conviction. Indeed it has been conceded on this appeal that there is no evidence to support the conviction apart from that admission so the wrongful tender of that deposition amounts to a substantial miscarriage of justice and I must allow the appeal.

Should I acquit the appellant or order a retrial? On the question the English cases are of little assistance because since 1908 when the English Court of Criminal Appeal was established the court has had a very limited power to order a retrial. However one Privy Council case on appeal from Jamaica is of use. In Reid v. The Queen [1979] 2 All E.R. 904 at 908-909 Lord Diplock, reading the opinion of the Privy Council, addressed himself to this question:

"Question (4) is general in its terms and asks for a statement of the principles which should apply in considering whether or not a new trial should be ordered. Their Lordships would be very loath to embark on a catalogue of factors which may be present in particular cases and, where they are, will call for consideration in determining whether on the quashing of a conviction the interests of justice do require that a new trial be held. The danger of such a catalogue is that, despite all warnings, it may come to be treated as exhaustive or the order in which the various factors are listed may come to be regarded as indicative of the comparative weight to be attached to them; whereas there may be factors which in the particular circumstances of some future case might be decisive but which their Lordships have not now the prescience to foresee, while the relative weight to be attached to each one of the several factors which are likely to be relevant in the common run of cases may vary widely from case to case according to its particular circumstances. The recognition of the factors relevant to the particular case and the assessment of their relative importance are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Jamaica who are familiar, as their Lordships are not, with local conditions. What their Lordships now say in an endeavour to provide the assistance sought by certified question (4) must be read with the foregoing warning in mind.

Their Lordships have already indicated in disposing of the instant appeal that the interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing-up to the jury. Save in circumstances so exceptional that their Lordships cannot readily envisage them, it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant.

At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso to s. 14(1) and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial.

In cases which fall between the two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor; so may its prevalence; and, where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which he ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies on the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.

The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but, except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion in Jamaica. On the one hand there may well be cases where despite a near certainty that on a second trial the defendant would be convicted the countervailing reasons are strong enough to justify refraining from that course. On the other hand it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that on a fresh trial an acquittal is on balance more likely than a conviction, ‘it is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery’. This was said by the Full Court of Hong Kong when ordering a new trial in Ng Yuk Kim v. The Crown (1955) 39 H.K.L.R. 49. This was a case of rape, but in the Lordships’ view it states a consideration that may be of wider application than to that crime alone.

Their Lordships in answer to the Court of Appeal’s request have mentioned some of the factors that are most likely to call for consideration in the common run of cases in Jamaica in which that court is called on to determine whether or not to exercise its power to order a new trial. They repeat that the factors that they have referred to do not pretend to constitute an exhaustive list. Save as respects insufficiency of the evidence adduced by the prosecution at the previous trial, their Lordships have deliberately refrained from giving any indication that might suggest that any one factor is necessarily more important than another. The weight to be attached to each of them in any individual case will depend not only on its own particular facts but also on the social environment in which criminal justice in Jamaica falls to be administered today. As their Lordships have already said, this makes the task of balancing the various factors one that is more fitly confided to appellate judges residing in the island."

It could be argued for the appellant here that the prosecution had its chance. The informant was legally represented in the trial below. The prosecutor presented the deposition in the other case in the wrong way. The tender should have been rejected. The prosecutor should not be given another opportunity to patch up his mistake in the first trial. It can also be said that the appellant should not be put to the expense of a retrial, however I note on this issue that the appellant was represented in the trial below and in this Court at the expense of the Police Association. The informant in the court below was a private informant and paid for his lawyer in the court below and on appeal out of his own pocket.

In this case the error was made by a lay magistrate — following an erroneous submission by counsel for the informant. But the important thing I think is that the evidence was let in, in the wrong way, because of a technical blunder by the magistrate. The evidence itself was fully admissible; the magistrate, Gabriel Buku, who heard the first case, could have been called to give evidence of the admission made before him.

I have been assisted by the case of R. v Oliver [1968] VicRp 27; [1968] V.R. 243, a decision of the Victorian Full Court. That case did not discuss the principles involved but it is an example very close to our present case. In that case the main evidence against the accused was admissions partly written and partly verbal. There was not enough other evidence to convict him. The admissions contained in a document were tendered and the accused had verbally adopted part of that document but had not signed it. Those admissions were admissible. But the later part of the same document, in particular 4, was not signed by the accused or adopted by him in some other way and should not have been put in evidence. The oral evidence of the statements recorded on 4 was admissible and it was given, but it differed from the written statement. Page 4, as it had not been adopted, could only have been used by the policemen to refresh memory. So the written evidence contained in 4 was inadmissible because it had not been adopted. The oral evidence on the same topic was admissible but differed slightly from the written version and, unfortunately, the trial judge in his summing up quoted from the written version. The court, without discussing the principles involved, ordered a rehearing.

There is a lot of public interest in this case and in the principle that police suspected of unlawfully assaulting a suspect in the course of their duties should be charged and tried. In my view the public interest in this case outweighs all contrary factors and requires a retrial.

I allow the appeal. The appellant is to be released from custody. I order a rehearing on giving seven days’ written notice to the defendant or his counsel. I recommend that the informant’s legal fees on the rehearing be paid by the State.

Appeal allowed.

Re-trial ordered.

____________________________

Lawyer for the appellant: Kanat & Sevua.
Lawyer for the respondent: Kirkes.