Agai v Yarume [1987] PGNC 18; [1987] PNGLR 124; N596 (25 June 1987)

N596

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

FIDELIS AGAI

V

BUCKLY YARUME

Kundiawa & Waigani
Bredmeyer J
24 October 1986
25 June 1987

APPEAL - Grounds of appeal - Denial of natural justice - Prosecutor related to victim - Police prosecution - Not likely to be called as witness - No miscarriage of justice.

APPEAL - Bias as ground for - Need for real likelihood or reasonable suspicion - Suggestion by inference insufficient - Magistrate and prosecutor wantoks not of itself sufficient.

COURTS AND JUDGES - Magistrates - Disqualification for bias - Need for real likelihood or reasonable suspicion of bias.

INFERIOR COURTS - Local courts - Practice and procedure - Prosecutor related to victim - May prosecute if not to be called as witness.

CRIMINAL LAW - Practice and procedure - Prosecutor related to victim - May prosecute if not to be called as witness.

Held

(1) A prosecutor, be he a police prosecutor or a lawyer, should not prosecute a case in which he is likely to appear as a witness, unless he is an informant conducting a private prosecution.

Simms v Moore [1970] 3 All ER 1, considered.

(2) In circumstances where a police prosecutor, prosecuting a charge of insulting words was the husband of the victim but not a witness, there was accordingly no unlawfulness or impropriety in that conduct which could amount to a substantial miscarriage of justice.

(3) A conviction is open to review where it is shown that there is a real likelihood or a reasonable suspicion of bias.

Kavali v Hoihoi [1986] PNGLR 329, followed.

(4) To say that, because a police prosecutor and the magistrate are from the same province and live in the same small town they must therefore know each other well, does not, without more, show a real likelihood or a reasonable suspicion of bias.

Cases Cited

Kavali v Hoihoi [1986] PNGLR 329.
R v Altrincham Justices; Ex parte Pennington [1975] QB 549, [1975] 2 WLR 450; [1975] 2 All ER 78.
Simms v Moore [1970] 2 QB 327; [1970] 2 WLR 1099; [1970] 3 All ER 1.

Appeal

This was an appeal against convictions on four related charges arising out of an incident at an hotel.

Counsel

A Yer, for the appellant.
P Luben, for the respondent.
Cur adv vult

25 June 1987

BREDMEYER J: Fidelis Agai was convicted of five charges by the Kundiawa District Court. He has served the nine months sentence imposed but he is pursuing the appeals as, he says, he wishes to clear his name.

Four of the charges arose out of a dance at the Kundiawa Hotel on 7 September 1985. They were insulting words to Miriam Kalasim, insulting words to Lyn Kim, unlawful assault of Wendy Anton, and being drunk and disorderly. The fifth charge was unrelated, that on 2 October 1985 he unlawfully assaulted Pasame Yaribe who was his domestic servant.

[His Honour then considered matters not calling for report.]

NATURAL JUSTICE — PROSECUTOR HUSBAND OF THE VICTIM

A ground of appeal in relation to the charge of insulting words to Miriam Kalasim is that, "The court erred in allowing the prosecutor who is the husband of the said Miriam Kalasim to prosecute when defence raised the objection."

The objection was raised. Miriam was the wife of the police prosecutor, Inspector Kalasim. Was the objection well founded in law? Mr Kuamin cited no authority on the point to the magistrate, nor Mr Yer in arguing it before me on appeal.

In a private information, where the informant is not represented by counsel, the informant is both witness and prosecutor. He is obviously partisan, yet it is permitted. In a police prosecution usually the informant is a different person from the prosecutor and it is best to keep it that way. See, for example, Simms v Moore [1970] 3 All ER 1. In that case the police informant on a charge of having an offensive weapon in a public place, was not assisted by a prosecutor. He was likely to appear as a witness, so rather than perform the prosecutor’s duties, he simply handed up the police statements to the justices’ clerk to examine the witnesses. The equivalent in this country would be handing up the prosecution witnesses’ statements to the magistrate and asking him to lead the evidence from them. The Queens Bench Division thought the informant acted properly.

A similar rule of ethics applies to barristers: a barrister should not accept instructions in a case in which he might appear as a witness. To summarise: a prosecutor, be he a police prosecutor or a lawyer, should not appear in a case in which he is likely to appear as a witness — unless he is an informant conducting a private prosecution. The facts of the case before me are different. The police prosecutor was not going to be a witness. I cannot see how Inspector Kalasim’s appearance as the prosecutor in the case in which his wife was the victim was unlawful or improper and does not amount to a "substantial miscarriage of justice" (s 230, District Courts Act (Ch No 40)).

NATURAL JUSTICE — THE MAGISTRATE AND THE POLICE PROSECUTOR

The fourth ground of appeal in the appeal against the conviction for insulting words to Miriam Kalasim is that:

"there was reasonable suspicion of bias in favour of the prosecution, as the prosecutor and the presiding magistrate are from the same Province."

At the hearing before me I granted leave for the other four appeals to be amended by adding the same ground. The appellant did not file any affidavits or call sworn evidence on the relationship between the prosecutor and magistrate, which would have given the magistrate a chance to reply. The appellant did not point to any matter of bias or favouritism in the appeal record. Mr Yer said that the magistrate and prosecutor both came from New Ireland, that Kudiawa is a small town and that I should infer that the magistrate may well socialise together with the prosecutor and his wife. Therefore, he argued, according to my note, that the prosecutor should have withdrawn from prosecuting all charges. That argument falls short of saying that the magistrate should have barred himself from the case. The argument is stronger in relation to Miriam’s case, because in that case there was a wantok victim and a wantok magistrate, than in the other cases where it was simply a wantok prosecutor and a wantok magistrate.

An instructive case of bias because of a connection between the magistrate and the victim of the offence is R v Altrincham Justices; Ex parte Pennington [1975] 2 All ER 78. In that case a conviction was quashed for bias. The prosecution was for selling underweight vegetables to two schools. The defendants had won a contract to supply vegetables to schools in the County Council area. That contract had been negotiated with the education committee of the Cheshire County Council. The chairman of the justices which heard the case and imposed the fines was a member of that committee. She was also a governor of two schools in the county. They were not the schools to which the underweight vegetables were sold mentioned in the charges but they were schools which also received vegetables from the defendants. She thus had a connection to the victims of the offences.

Lord Widgery CJ said that the rule of natural justice relating to bias is well known. It is not necessary to prove that the judicial officer was biased. It is enough to show a real likelihood of bias, or at all events that a reasonable person advised of the circumstances might reasonably suspect that a judicial officer was incapable of being impartial and detached. Lord Widgery said that before embarking on his judicial tasks for the day, a magistrate who also had interests in other public work, should study the list of cases to be heard and where he was actively involved with, and known to be actively connected with, a victim of an alleged offence he should either disqualify himself from hearing that case, or at least draw his connection with the victim to the attention of the parties before the start of the hearing to see if there is any objection.

I distinguish that case from the present one. In that case the connection between the magistrate and victim was proved. Here I consider it is not proved. To say that the magistrate and victim are from the same province, that they live in a small town, and that therefore I can infer that they know each other well, see each other often socially etc, is not proof. It is suspicion not evidence.

There are 19 provinces in Papua New Guinea and a great movement of people for example, Sepiks living in Port Moresby, Keremas living in Rabaul, etc. It will often happen that a magistrate or a judge will have someone from his own province before him as prosecutor or defence counsel and he may have someone from his own province as defendant or as the victim of a crime. The administration of justice would come to a standstill if every time a prosecutor and victim (or, for that matter — defence counsel and defendant) came from the same province as the magistrate, a party could apply to have the magistrate barred for bias. So I would lean against any such interpretation. The test is whether there is a real likelihood or reasonable suspicion of bias: Kavali v Hoihoi [1986] PNGLR 329. I consider that this has not been proved in this case. I consider that there has been no substantial miscarriage of justice.

I dismiss all four appeals.

[His Honour then considered matters not calling for report.]

Appeals dismissed

_______________

Lawyer for the appellant: A Yer.
Lawyer for the State: Public Prosecutor.