Bernik v Guali, Senior Provincial Magistrate [2003] PGNC 143; N2329 (21 February 2003)

N2329
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

APPEAL NO. 260 OF 2001

BETWEEN:

PETER STANISLAU BERNIK
Appellant

AND:

MEKEO GUALI,
(A SENIOR PROVINCIAL MAGISTRATE SITTING AS THE MAGISTRATE OF THE ALOTAU DISTRICT COURT)
First Respondent

AND:

PUBLIC PROSECUTOR
Second Respondent

Waigani: Davani .J
2003: 13, 19, 21 February

PRACTICE AND PROCEDURE – trial – right of accused to legal representation – Application for adjournment – Refusal by trial magistrate – whether trial unfair – whether miscarriage of justice – Constitution s. 37 (4); s. 42 (2)

PRACTICE AND PROCEDURE – trial – Cross-Examination, an efficacious test – significance of cross-examination

Cases and texts cited

Dietrich v R [1992] HCA 57; [1992] 109 ALR 385

Mr Thomas Starkie, Evidence 1824
Sir Mathew Hale L.C.J 1680 History of The Common Law
John Henry Wigmore on Evidence A treatise on the Anglo-American Evidence in trials at Common Law 3rd Edition Volume 5

Counsel:

R. Pato for the Appellant

21 February 2003

DECISION
(Appeal)

DAVANI .J: On 19 February 2003, I handed down brief reasons for my decision and said I would give detailed written reasons at a later stage. This I now do.

This is an appeal from a decision of the Alotau District Court (the ‘Court’) made on 8th December 2001 where the Appellant was committed and sentenced to be imprisoned for a period of 12 months in hard labour. The Appellant was charged for the commission of four firearm related charges of being in possession of ammunition without being the holder of a firearm or a high-powered firearm license, charge laid pursuant to s. 65A of the Firearms Act (the ‘Act’).

The court proceeded to convict the Appellant after hearing evidence. I have heard that pending the hearing of this appeal, the Appellant applied for and was granted bail by the National Court.

Ex parte Hearing

Before proceeding to the merits of the appeal, I should state at the outset that the Appellant’s Lawyer Mr Pato of Pato Lawyers had to apply to proceed to the hearing of the appeal in the Respondent’s absence because the Public Prosecutor, representing both Respondents had not responded to the Appellant’s lawyer’s many letters to it requesting that the Appeal be set down for hearing. I also sighted a letter on the court file from Pato Lawyers dated 23rd January 2003 to the Public Prosecutor, thanking him for his consent to have the matter set down for hearing in February 2003. Upon sighting these letters, including the latest (from Pato Lawyers to the Public Prosecutor) dated 12th February 2003, advising of the hearing date of the appeal, I then made a brief ruling that the matter proceed ex parte.

Grounds of Appeal

The Appellants Notice of Appeal dated 21 December 2001 (the ‘Notice’) sets out the grounds of appeal. The Notice pleaded 5 grounds of appeal which I summarise below.

s. 65 A of the Act states:

"65A. Unauthorised possession of ammunition (2)

A person who is in possession of ammunition and who is not –

(a) the holder of an ammunition license; or
(b) The holder of a gun – dealer’s license; or
(c) The holder of –

• (i) a firearm license; or
• (ii) a high-powered firearm license; or
• (iii) a pistol license for a firearm, high-powered firearm or pistol as the case may be, capable of discharging ammunition of the specific calibre at gauge of that which is in his possession,

is guilty of an offence."

I will deal with the several grounds of appeal together, as summarised.

Grounds one and two –

1. The learned Magistrate erred in law and in fact when in mid-trial, he ordered that the Appellant’s lawyer should not continue to represent the Appellant;
2. The learned Magistrate erred in law and in fact when in mid-trial, having barred the lawyer from appearing, then refused to adjourn to allow the Appellant to instruct another lawyer.
   

The evidence is that the learned magistrate refused to allow the trial lawyer to continue to represent the Appellant because he had arrived late for the trial. In his reasons at pg 165 of the Appeal book, the learned magistrate stated that although the lawyer was in court on trial days 5th and 6th December 2001, he was not at court for resumption of trial on 7th December at 10.30am. The matter was then stood over to 1.30pm and resumed at 2.30pm when counsel was in court. The State called its 5th witness but the court would not allow Appellant’s trial counsel to cross-examine the witness. This is what is stated in the magistrate’s reasons:

"...the prosecutor called the 5th witness. Before the cross-examination by the counsel, I asked the counsel why the court should allow him to cross-examine the witness. I specifically said this because when the court resumed at 2.30pm he made no apology to the court of the reasons for not be (?) available at 10.30am that day. He simply said that the Defendant would speak for himself. As I was not satisfied with his reasoning, I barred him from appearing before me."

The Appellant was then asked by the court if he had questions for the witness to which he said he would request an adjournment to the next day to find a lawyer.

The Appellant said he would come back to court with a lawyer if he was granted the adjournment. The magistrate adjourned to the next day Saturday 8th December because the National Court would be commencing its circuit in Alotau on 10th December and as such, there would not be any court rooms available. The learned magistrate’s second reason for adjourning was because the magistrate was proceeding on leave transfer as at 13th December. For the magistrate, it was imperative that he hear and complete the trial.

The Appellant submits that the opportunity to obtain an acquittal was lost by the lack of legal representation. He submits that it is his basic constitutional right as guaranteed under ss. 37 (4) and 42 (2) of the Constitution i.e. the right to a fair trial and representation by counsel of his choice. I set these sections out in full:

"37. Protection of the law

(4) A person charged with an offence –

• (a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be peculiarly within his knowledge; and
• (b) shall be informed promptly in a language which he understands, and in detail of the nature of the offence with which he is charged; and
• (c) shall be given adequate time and facilities for the preparation of his defence; and
• (d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
• (e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
• (f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution."
  

"42. Liberty of the person

(2) A person who is arrested or detained –

• (a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
• (b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
• (c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest of his rights under this subsection."
  

In this case, the Appellant was asked if he wished to cross-examine the Prosecution’s witnesses. He refused, preferring that a lawyer do that for him. The Appellant did not appreciate or understand that the magistrate had to complete that case because if he was going on a leave transfer, then there was no guarantee as to when he would return to Milne Bay or Alotau to complete the case. Notwithstanding, the court finds also that the learned magistrate was hasty in dismissing the Appellant’s lawyer when he could have accepted the apology from the Appellant’s lawyer. I say this because I note in Andrew Furigi’s affidavit sworn on 22 January 2002 which is part of the Appeal Book, that Mr Furigi did apologise to the court but the magistrate refused to accept his apology. In addition to my finding on the learned magistrate’s hasty decision to dismiss the Appellant’s lawyer, I refer to the case of Dietrich v R [1992] HCA 57; [1992] 109 ALR 385, a decision of 13 November 1992, referred to me by Appellant’s counsel. In that case, the Applicant sought special leave to appeal to the High Court of Australia where he claimed that his trial in the County Court of Victoria on a charge of importing not less than a trafficable quantity of heroin had miscarried by virtue of the fact that he was unrepresented by counsel. The High Court held by a majority that where an indigent accused charged with a serious offence through no fault of his, is unable to obtain legal representation, applies to the trial judge for an adjournment or stay, then in the absence of exceptional circumstances, the trial should be adjourned, postponed or stayed until legal representation is available. The court held further:

"If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."

The magistrate’s reasons for barring the lawyer from appearing were not created by the Appellant. The magistrate’s reasons for refusing the Appellant’s application to adjourn were not exceptional, but only served to cause inconvenience and a great injustice to the Appellant because in mid-trial, he suddenly found he did not have legal representation. His right to a fair trial was definitely prejudiced.

I find that by the learned magistrate’s hasty decision in barring the Appellant’s former lawyer from appearing, that the Appellant could not properly defend the case, in the District Court, considering the seriousness of the charge. The learned magistrate, clearly, is in breach of s. 37 of the Constitution. Therefore, a serious miscarriage of justice has occurred as a result of the learned magistrate’s decision. I will uphold these grounds.

Ground three –

3. The learned magistrate erred in law and in fact when he reached a guilty verdict:

(a) as there was no evidence that the Appellant was in possession of ammunition whilst on board the vessel, and that he was not authorised to do so because he is not the holder of a firearm license, a high-powered firearm license or a pistol license and is not the holder of an ammunition license or a gun-dealer’s license.

(b) that there was no evidence before the court for the court to be satisfied beyond reasonable doubt that the Appellant did commit the offence, as alleged.

All prosecution witnesses in the District court state in their evidence that the ammunition is owned by the Appellant, that he brought them from Cairns, Australia without telling or advising the boat owner and that he unloaded them into his dinghy, in front of the police, resulting in his arrest. Relying on that, the magistrate found on the circumstantial, prima facie evidence, that the Appellant was guilty of the offence, beyond all reasonable doubt.

The Appellant’s lawyer submits the bullets were not in his client’s possession as alleged by the Police, and he refers to the several incidents in the evidence where he says that is the case.

Without canvassing the evidence, it is proper that this court examine the manner in which the District court conducted the trial as it is the essence of this appeal. I find that even if the evidence, prima facie, is overwhelmingly against the Appellant, this court cannot simply ignore the failure by the magistrate in allowing the Appellant the benefit of legal representation, as I refer to earlier. This then led to the State’s evidence being unchallenged and untested by cross-examination. The District Court’s decision to convict was based on this untested evidence. Cross-examination is vital in any trial. The false witness can break in cross-examination, such has been their fate. The praise of cross-examination and its efficacy as a fundamental test of truth have often been the subject of comment and exposition by judges and jurists. Wigmore on Evidence 3rd Edition expounded on this at pg 29:

"Not even the abuses, the mishandlings, and the puerilities which are so often associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.

However difficult it may be for the layman, the scientist or the foreign jurist to appreciate this its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer of experience – "You can do anything," said Wendell Phillips, "with a bayonet – except sit upon it." A lawyer can do anything with a cross-examination, - if he is skilful enough not to impale his own cause upon it...striking illustrations of its power to expose inaccuracies and falsehoods are plentiful in our records, and it is apparent enough, in some of the great Continental trials, that the failures of justice could hardly have occurred under the practice of effective cross-examination..."

In 1680, Sir Mathew Hale L.C.J in his History of The Common Law, c. 12 said:

"...that by this course of personal and open examination, there is opportunity for all persons concerned viz. the judge, or any of the jury, or parties or their council attorneys, to propound occasional questions, which beats and boults out the truth much better than when the witness only delivers a formal series of his knowledge without being interrogated..."

1824, Mr Thomas Starkie, in his text Evidence 1, 96, 129 said:

"The power given to the party against whom evidence is offered of cross-examining the witness upon whose authority the evidence depends constitutes a strong test of both the ability and the willingness of the witness to declare the truth. By this means the opportunity which the witness had of ascertaining the fact to which he testifies, his ability to acquire the requisite knowledge, his powers of memory, his situation with respect to the parties, his motives, are all severally scrutinized and examined. Under such circumstances it must be very difficult for a witness to interweave a false account so nicely with the truth as to make it consist and agree with all the other circumstances of the case.... However artful the fabrication of the falsehood may be, it cannot embrace all the circumstances to which the cross-examination may be extended; the fraud is therefore open to detection for want of consistency between that which has been fabricated and that which the witness must either represent according to the truth, for want of previous preparation, or misrepresent according to his own immediate invention.... The power and liberty to cross-examine is one of the principal tests which the law has devised for the ascertainment of truth, and is certainly a most efficacious test."

I adopt all the above commentaries as forming part of this decision and will also uphold this ground.

Ground four –

4. The learned Magistrate erred in law in that the Appellant was not afforded the opportunity to address on sentence and even if he did, which is denied, the learned Magistrate failed or refused to take into account the one month he spent on remand awaiting trial, when handing down sentence, and that therefore the sentence is manifestly excessive in the circumstances.
   

The court depositions show at pg 161 of the Appeal Book that the Appellant was given the opportunity to address on sentence and he did so. However, the learned magistrate did not apply the one month spent in custody towards reduction of the sentence. Therefore in itself, the magistrate in error, sentenced the Appellant to 12 months in hard labour, rather than the reduced term of 11 months. A blatant error has occurred.

Conclusion

In any event, all grounds relate to the manner in which the trial was conducted. I have found that the Appellant was denied the right to proper legal representation and hence, a fair trial, because of the learned magistrate’s hasty decision to deny the Appellant representation by a lawyer. Secondly, because of the learned magistrate’s said decision, the trial was not properly run and a miscarriage of justice has occurred, in the circumstances.

Orders

I will uphold the appeal and will quash the Alotau District Court’s decision of 8th December 2001. By the powers available to me under s. 230 (1) (c) and (d) of the District Courts Act, I will remit the matter for rehearing and trust that the Police will prosecute this matter with undue delay.

The formal orders of the court I make are;

1. The Appellant’s appeal against the convictions on 8/12/01 by the District Court at Alotau on four (4) charges laid pursuant to S. 65"A" of the Firearms Act and sentenced to 12 months imprisonment is hereby allowed and each conviction thereof is quashed; and
   
2. All personal effects of the Appellant as determined by the Appellant (except the ammunitions the subject of the charges and subsequent convictions) be returned to the Alotau Police forthwith subject to a list to be provided to the Court; and
   
3. The sum of one thousand Kina (K 1,000.00) paid on account of bail pending the hearing of this Appeal be refunded to the Appellant forthwith; and
   
4. The Appellant’s passport held by the Clerk of the District Court at Alotau and or Police at Alotau be returned to the Appellant forthwith; and
   
5. The Firearm (Pistol) belonging to the Appellant and the Pistol licence issued against the same in favour of the Appellant including any accessories thereof seized by the police be returned to the Appellant by the Alotau District Court or Police forthwith; and
   
6. The matter be remitted to the Alotau District Court for rehearing before a Magistrate other than the first respondent; and
   
7. The orders hereof take effect upon settlement of the same by the Registrar, that which shall occur forthwith.

_____________________________________________________________________
Lawyer for the Appellant : Pato Lawyers