State v Tubol [1994] PGNC 81; N1206 (12 April 1994)

N1206

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 241 OF 1993

THE STATE

V

SEI NAKIKING TUBOL & 9 OTHERS

LAE: SEVUA, J.
12 April 1994.

Criminal Law - Evidence - Admissibility - Alibi - Leave to call evidence - Failure to give notice within prescribed period - Criminal Practice Rules Order 4 Rule 4.

Practice and Procedures - Application for leave - Application opposed - Discretion to grant or refuse leave - Failure to establish grounds for leave to be granted - Leave refused.

Cases Cited:
The following cases are cited in this judgement:
The State -v- Robert Wer & Ors [1988-89] PNGLR 444
R v Sullivan [1970] 3 WLR 210, [1970] 2 ALL ER 681

R Saranduo for State
C Inkinsopo for Accuseds

SEVUA, J: The nine accuseds are indicted with wilful murder. Their trial commenced on 6th April after the defence requested an adjournment on 5th April, as the trial was listed to commence on 5th April.

The State has adduced evidence from five of it's witnesses and has other witnesses to call. At this stage, the Court was informed that the State intended to call a witness whose name is not on the indictment to rebut the evidence of alibi the defence intended to adduce. It was at this stage of the trial that the Court learned through the State that the defence would be adducing alibi evidence. When the Court enquired further into this aspect of the trial, the State counsel informed the Court that the defence had filed a notice of alibi on 5th April however, Order 4 Rule 4 of the Criminal Practice Rules had not been complied with. At my intimation that I would not entertain an application by the defence for leave to call alibi evidence, defence counsel sought an adjournment to address the Court on the question of leave. I therefore adjourned the trial on 9th April to yesterday to hear the application.

It will enhance the understanding of this matter in my view if I went over the history of this case because I consider that at the end of the day, one would be in a much better position to appreciate the reasons for the final outcome of this application. I would therefore set out the history of this case as known to the parties and the Court.

Previously, Mr Godfrey Langtry acted for these accuseds in a bail application made sometime last year before Andrew, J in which the application was refused. I subsequently refused to entertain another similar application and urged Mr Langtry to apply to the Supreme Court since bail had already been refused by the National Court.

On 1 November 1993, during the call over for that month, this matter was mentioned then adjourned to 15th November for further mention. Mr Peter then appeared for the State whilst the present defence counsel, Mr Inkinsopo, appeared for these accuseds. Both sides did not have files then. On 15 November 1993, (when the matter came for mention) the State indicated that it would call ten witnesses and the State's case would take about a week. The State was then represented by Mr Saranduo, whilst the accuseds were represented by Mr Inkinsopo who said he had obtained instructions and confirmed the trial. I then listed the matter for trial before me commencing 4th April till 11th April. At that time I was not aware that 4th April was a public holiday. When the matter was mentioned on 15 November 1993, nothing was said about alibi evidence or a voir dire let alone the defence indicating that it had "brief" instructions. I mention these aspects because it will become apparent when one considers what defence counsel said yesterday.

After ascertaining that 4th April was as an Easter holiday, the dates of trial were relisted to 5th - 14th April. Between the last mentioned date and the trial date, the Court was never informed in writing or verbally that the defence would be adducing alibi evidence and that a voir dire would be involved. Had these information been provided to the Court, additional days could have been allocated to the eight days previously allocated to contain any contingencies.

On 5 April 1994, a conference between counsels (B. Poiya, R. Saranduo, C. Inkinsopo and G. Lantry) and Judges (Andrew, J and Sevua, J) were held in order to ascertain availability of counsels for this case specially as both Judges were not certain if Mr Langtry was still acting for those accuseds since he was appearing before Andrew, J in another matter. There was no State Prosecutor available to present indictments except Mr Poiya, but he was on leave and Mr Saranduo was unable to present indictments. These matters needed to be sorted out before both Courts commence sittings that day. In that conference, when this matter was mentioned and I specifically referred to the duration of the trial, Mr Inkinsopo responded that it should take less than eight days. The point I emphasise here is that, either Mr Inkinsopo did not have instructions regarding the alibi and voir dire then or if he did, he failed to give an indication. I may add here that in Lae, it has become an unwritten rule in call overs or when listing cases for trials that, where a trial involves a voir dire or alibi evidence, those facts are recorded in the bench diary so that the trial Judges are aware and are informed of those aspects. In this case, these facts were not revealed.

When the case was called for trial, in the mid-morning of 5th April, defence sought an adjournment to the next morning to have another conference with the accuseds. The adjournment was granted reluctantly and with a direction that the trial would commence on 6th April with or without that conference being completed since the Court was of the view that both the accuseds and their counsel had had more than adequate time to prepare their defence. I will reiterate here again that, even on that date the defence did not indicate that it would or it intended to call alibi evidence and that there would be a voir dire. The defence again failed to give these indications when the trial eventually commenced on 6 April. Was this a surprise or belated tactic employed by the accuseds and their counsel? As the defence counsel had been involved since 1 November, 1993, why did he not provide these information to the State and Court if his instructions covered these aspects of the trial? Or did he not have instructions and those matters were of very recent origin? These questions are left unanswered because no explanations have been given by the defence.

Last Friday, 9th April, when defence counsel indicated it wish to make an application for leave to adduce alibi evidence after revelation by the State as to the alibi evidence and the voir dire, I intimated that I would be loathe to allow the application. However, in fairness to the accuseds, I permitted this application to be made yesterday, with a direction that I needed to be referred to relevant Supreme Court authorities and would not waste time with hearing mere propositions.

In support of the application for leave to call alibi evidence made yesterday, the defence counsel referred me to the case of The State -v- Robert Wer & Ors [1988-89] PNGLR 444, a decision of Brunton, AJ (as he then was) who held inter alia that,

"(1) the discretion of the Court under 0 4 r 4 of the Criminal Practice Rules is to be exercised judicially. The mere fact that the necessary information was not given within the prescribed period does not, of itself, as a general rule, justify the court in refusing permission for the evidence to be called."

His Honour adopted and applied R v Sullivan [1970] 3 WLR 210, [1970] 2 ALL ER 681. On the basis of that case, defence counsel submitted that I have a discretion and that I should exercise that discretion in favour of his clients. What he failed to address this Court on was the basis for which His Honour in that case, granted leave to the accuseds to adduce evidence of an alibi. I will revert to this aspect later.

At this juncture, let me reiterate that in the present case, the accuseds through their counsel, had failed to serve a notice of alibi on the State Prosecutor within 14 days as required by Order 4 Rule 4 of Criminal Practice Rules. If I may quote part of it, that rule provides -

"an accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the prosecutor written notice of particulars of the alibi and ------".

The Court notes that defence counsel in this case acknowledged that the rules (O 4 r 4) is explicit in it's terms and further that the accuseds have not complied with the rules. Nevertheless he submitted that as I have a discretion, I should exercise it in favour of his clients.

I consider that the Court has a discretion under Order 4 Rule 4. The phrase, "without the leave of the Court," is the basis for that discretion and I agree with His Honour Brunton, AJ, that it is a matter of discretion to admit the alibi evidence. I also agree that the discretion under Order 4 Rule 4 is to be exercised judicially. By that I take it that, as the presiding judicial officer having the authority of a Court of law, I have power to exercise personal judgement in that judicial capacity.

Defence counsel has also submitted that there are Constitutional issues that I should consider even if the rules were not complied with. The constitution referred to was the right to a fair hearing. He referred to s 37 (3) and (4)(f) which are covered by Brunton, AJ in his judgement. Whilst I agree with the constitutional and other aspects as discussed by His Honour there, I consider that counsel's submission in the present case was misconceived. Counsel had merely referred to s 37 (3) and (4) (f) without explaining how those provisions would affect his clients' interest. In my view that constitutional protection was applicable to that case and what was applicable in that case is not necessarily applicable to the present case. Whilst I acknowledge that an accused person is entitled to a fair hearing each case must be distinguished. In this case the nine accuseds are not being forced into trial and they have not been unnecessarily held in custody for an unreasonable period. They have had a little over four months to prepare their defence. They were represented at all times by a qualified lawyer. How then is their right to a fair hearing within a reasonable time, affected? Counsel have not really put forth any persuasive arguments and I will go no further than this. I hope by the time the facts of the present case are distinguished from the two cited cases, one will appreciate the basis for the exercise of the discretion in all three cases.

Firstly, in The State v Robert Wer & Ors, the defence counsel did not get to Mendi until the day before the circuit commenced and further, he had obtained instructions from his clients a day before the trial. I quote from p 445,

"Mr Wogaro then applied for leave to adduce evidence of an alibi out of time, stating that he had only obtained instructions of his clients a day before the trial started and that he had hoped the procedures would be waived."

Again on p 448, His Honour said,

"The real problem with this application is that Mr Wogaro of the Public Solicitors Office did not get to Mendi until the day before the circuit started. He did not interview the accused for the purpose of taking instructions (on his own admission) until the day before the trial began. That is not enough. The failure of a lawyer in a major case - wilful murder with multiple offenders - adequately to prepare his case, including the meeting of time limitations imposed by the Criminal Practice Rules, not only has the potential of prejudicing the client, but actually causes serious inconvenience to the Court. It then becomes open to form the view that the lawyer is in breach of duty either to the client or to the Court. Potential arguments that the Public Solicitor's office is under-resourced have to be reconciled with S.225 and S.23 of the Constitution."

In the English case of R v Sullivan, the accused had previously on two occasions, appeared without a counsel. Two days before trial, he obtained legal aid and on the trial date, his lawyer wrote to the prosecutor and gave notice that he would be calling alibi witnesses and supplied the relevant informations such as names and addresses of the alibi witnesses as required by s 11 of the Criminal Justice Act 1967 which is in very similar terms to our Order 4 Rule 4. On the second occasion the accused appeared without a counsel, he was warned by the Court that he would not be permitted to call alibi evidence unless he has given the required notice within seven days. On the date of the trial, the Crown sought an adjournment for the express purpose of investigating the alibi information. The trial was then adjourned for 3 weeks. When the case resumed after the adjournment, the Court refused permission to the accused to call alibi witnesses.

In the present case, defence counsel who has been appearing for the accuseds on previous occasions had had instructions at least since November, 1993. In fact, he had received instructions on 14 November 1993. This fact was made known to this Court only yesterday during the application. This is therefore not a case where counsel had obtained instructions from the accuseds a day or two before trial as in Robert Wer and others. In the present case, counsel had been in possession of instructions for more than 4 months and I consider that was adequate time to prepare his client's case. By this, I consider that he would have, in pursuance of his duty to his clients, considered and discussed any relevant defences available including an alibi. I consider that he would have had ample time to file the necessary documents and serve them on the State, in this case, the notice of alibi. He failed in his duty and he comes to this Court and asks for the exercise of the Court's discretion in favour of his clients as a remedial cure for his failure.

Defence Counsel has in my view, sought to justify this application by providing what I would term, "The Public Solicitor's Under-Resourced" argument which has become a common excuse before the Courts. Whilst I appreciate that argument, in my view, the Public Solicitor has recourse under Sections 23 and 225 of the Constitution and if he fails to utilise those provisions, this argument would become meaningless before the Courts. From the bar table and upon questioning the defence counsel, he said he had initially obtained "brief" instructions from the accuseds on 14 November 1993 for purpose of mention since he was the only lawyer available in Lae that time. I accept this because I was aware of that situation. But he also said, another defence lawyer had been sent to assist him but had "overlooked this case." Counsel then said, "I realised that my plans had not been attended to and I had to do this myself."

The fact of the matter is, if counsel was not in a position to go to trial, he failed to take the appropriate steps. He neither advised the State nor the Court about his situation and he failed to ask for an adjournment either before the trial or at the commencement of the trial. He did not utilise the procedures under Order 2 Rules 6 and 7 and in particular, he did not utilise Rule 6(j) and Rule 7(f) of the Criminal Practice Rules. This procedure was available to him prior to the trial and he did not use it. In my view, if he did not have instructions in respect of alibi until 5th April, the most obvious, wisest and ethical thing to do was to inform the Court and perhaps seek an adjournment.

I consider that the present case is clearly distinguishable on the facts from the two cases referred to. The facts of those two cases are quite different from the facts of this present case. The circumstances surrounding the refusal of leave in the English case and the grant of leave in the PNG case are obvious. In the English case, when the case resumed, the appellant had by that date, satisfied the seven days requirement in s 11 of the Criminal Justice Act 1967 so that when the Chairman refused leave to call alibi witness, he clearly fell into error. His refusal was therefore erroneous. In the PNG case, defence counsel had obtained instructions from the accuseds just the day prior to trial. The Court granted leave for that reason and in my opinion, the Constitutional arguments of s 37(3) and (4)(f) became relevant in view of that time factor. In my view, those situations are quite different to the present case and I consider that the facts of this case do not justify the exercise of the Court's discretion in favour of the accuseds.

In fact it is glaringly obvious that the accuseds have not established to the Court's satisfaction the basis or reason for which the Court's discretion should be exercised in their favour so that they can call alibi witnesses. All they have done was, satisfied me that I have a discretion pursuant to Order 4 Rule 4 of the Criminal Practice Rules. As I have adverted to earlier, I agree that the Court has a discretion under the rules. The question in this case is what is the basis for the exercise of the Court's discretion in their favour? The accuseds have not advanced any reason or explanation as to their lateness in giving the notice of alibi. They have not explained why they did not file their notice in time or the cause of their delay. I am asked to exercise my discretion without their satisfying me why I should exercise that discretion in their favour.

Of course, the exercise of discretion is subject to reason and to other considerations. Not all applications can be successful. The success of an application involving the exercise of the Court's discretion would really depend on the factual situation of a given case. All cases are not the same. In my view, for an applicant to succeed in an application for the exercise of the Court's discretion, the onus is on him to satisfy the Court of the basis for which the Court's discretion should be exercised in his favour. If he fails to discharge that onus, then he fails to get what he seeks. In this case, I am satisfied that granting or refusal of leave under Order 4 Rule 4 is a discretionary matter. I am further satisfied that I can exercise that discretion one way or the other. However, I am not satisfied as to why the applicants want this exercise of discretion in their favour.

Because the accuseds have failed to establish a proper basis for which the Court's discretion should be exercised in their favour, it is the judgement of this Court therefore to uphold the State's objection that leave to adduce alibi evidence be refused. Accordingly, leave will be refused.

Lawyer for State: Public Prosecutor
Lawyer for Accuseds: Public Solicitor