Tarei v State [2008] PGNC 205; N3539 (11 December 2008)

N3539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 4 0F 2008

FRANCIS TAREI
Appellant

V

THE STATE
Respondent

Kimbe: Cannings J
2008: 16 October
11 December

APPEAL

CRIMINAL LAW – dangerous driving causing death – appeal against conviction in District Court.

The appellant was convicted by the District Court of an offence under Criminal Code, Section 328, of dangerous driving causing death. He appealed against his conviction on four grounds:

(1) the State witnesses gave contradictory evidence, which the magistrate failed to sufficiently take into account;

(2) procedural unfairness arising from the State being permitted to introduce two witnesses without sufficient notice being given to the defence;

(3) the magistrate erred by rejecting for insufficient reasons the evidence of two passengers in the vehicle driven by the appellant;

(4) the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel.

Held:

(1) There were no material inconsistencies in the evidence of the main State witnesses. The District Court did not err in its assessment of their evidence.

(2) The complaint that two State witnesses were introduced without sufficient notice being given to the defence was vague and poorly articulated. There is no reasonable inference of procedural unfairness arising from an examination of the District Court record.

(3) There was good reason for the magistrate to reject or at least give little weight to the written statements of the two passengers: they were friends of the appellant and more importantly they did not give oral evidence at the trial.

(4) The complaint that the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel was vague and poorly articulated. There is no reasonable inference of procedural unfairness arising from an examination of the District Court record.

(5) All grounds of the appeal were dismissed. The National Court was not satisfied that there has been any miscarriage of justice. The appeal was accordingly dismissed.

Cases cited

The following case is cited in the judgment:

John Beng v The State [1977] PNGLR 115

Abbreviations

The following abbreviations appear in the judgment:

CA – Criminal Appeal
J – Justice
N – National Court judgment
NBPOL – New Britain Palm Oil Limited
No – number
PNGLR – Papua New Guinea Law Reports
v – versus

APPEAL

This was an appeal from a decision of the District Court finding the appellant guilty of a criminal offence.

Counsel

T Gene, for the appellant
F Popeu, for the respondent

11 December, 2008

1. CANNINGS J: This is an appeal against a decision of the Kimbe District Court, constituted by Principal Magistrate, Mr Luke Vava, finding the appellant, Francis Tarei, guilty of the offence of dangerous driving causing death. Mr Tarei was sentenced to two years imprisonment. His appeal is only against his conviction, not the sentence.

THE DISTRICT COURT TRIAL

2. The appellant was found guilty of driving a Toyota Landcruiser dangerously in the early hours of Sunday 29 August 2004 on the Hoskins-Kimbe Highway, thereby causing the death of a 17-year-old pedestrian, Jeffery McKibben. The District Court found that the appellant had a night out at the San Remo club with two female friends, Emily Brown and Debora Nomi. They left San Remo and drove to Mosa to look for cigarettes but found none and headed back towards Kimbe. He was under the influence of liquor when the vehicle ran off the road at Morokea. He failed to negotiate a slight bend in the road, and the vehicle collided with Mr McKibben, who was walking on the side of the road, on the left side of his body, breaking his pelvis and causing internal injuries. The vehicle overturned. Mr McKibben died later that day from the injuries received in the collision.

3. The appellant was represented at the trial by Mr Oiveka of the Public Solicitor’s office. Police Prosecutor, Mr Sukena, ran the State’s case.

4. For the State, four witnesses gave oral evidence. James Baki and Peter John testified that they saw the appellant’s vehicle being driven at high speed and run off the road and hit Mr McKibben on his left side. Ruth Michael and Elizabeth Michael said that they arrived on the scene soon afterwards and saw the overturned vehicle and saw Mr McKibben lying on the side of the road, injured.

5. The main defence offered was that Mr McKibben was asleep on the road and the appellant veered off the road to avoid hitting him. The appellant gave an unsworn written statement to that effect. Ms Brown and Ms Nomi made similar statements to the police, which were admitted into evidence. However, none of them gave oral evidence.

6. Mr Vava gave little weight to the evidence of the female passengers, Ms Brown and Ms Nomi, as they were friends of the appellant, they had all attended the dance at the San Remo club and they all had the same employer, NBPOL. His Worship relied on the evidence of Mr Baki and Mr John, which confirmed that the appellant was driving at very high speed when he ran off the road and accidentally hit Mr McKibben, on his left side. His Worship rejected the defence case that Mr McKibben was sleeping in the middle of the road as there was "no evidence" to support this version of events.

7. His Worship concluded that the prosecution had proven its case beyond reasonable doubt. A conviction was entered under Sections 328(2) and (5) of the Criminal Code.

GROUNDS OF APPEAL

8. There are four grounds:

(1) the State witnesses gave contradictory evidence, which the magistrate failed to sufficiently take into account;

(2) procedural unfairness arising from the State being permitted to present two witnesses without sufficient notice being given to the defence;

(3) the magistrate erred by rejecting for insufficient reasons the evidence of the two passengers in the vehicle driven by the appellant;

(4) the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel.

9. Before proceeding to address the four grounds, I need to explain why I regard them as forming the basis of the appeal as it is not possible to look at just one document to work out what the grounds of appeal actually are.

10. The notice of appeal filed on 5 February 2008 comprised three grounds of appeal. Another document, entitled ‘further grounds of appeal’ was filed on 28 May 2008. It consisted of 29 paragraphs, amongst which were some additional appeal points. But, really, the document is more of a submission than an appeal document.

11. At the hearing of the appeal, on 16 October 2008, the appellant’s counsel, Mr Gene, filed a written submission that referred to seven grounds of appeal, three of which he said were not being pursued. I have regarded the four remaining grounds as the grounds of appeal that must be determined.

GROUND 1: STATE WITNESSES GIVING CONTRADICTORY EVIDENCE

12. Mr Gene submitted that the evidence of Ruth Michael and Elizabeth Michael contradicted the evidence of James Baki and Peter John in three respects:

• the date on which the incident happened;
  
• the position in which the deceased was at the time of the incident; and
  
• how the incident happened.
  

13. It is correct that Ruth Michael and Elizabeth Michael gave confusing evidence about the date on which the incident occurred. Elizabeth Michael said it occurred on 28 October 2004, while Ruth Michael said it was 28 September 2004.

14. However, I do not consider the discrepancy in dates to be significant. It is clear from the nature of their written witness statements and their oral evidence to the District Court that both these witnesses knew the deceased personally. They were obviously giving evidence about the serious incident as a result of which the deceased lost his life. The fact that they have given wrong dates is inconsequential.

15. As to the alleged inconsistency in their evidence concerning the time of the incident and how it happened, neither Ruth Michael nor Elizabeth Michael gave direct evidence on these issues of fact. Their evidence was of hearing a crash and racing to the scene to see what had happened and finding an overturned vehicle and Mr McKibben lying on the side of the road. Their evidence does not contradict the evidence of James Baki or Peter John, which was eyewitness evidence of seeing the collision between the vehicle and Mr McKibben.

16. I dismiss this ground of appeal.

GROUND 2: PROCEDURAL UNFAIRNESS ARISING FROM INTRODUCTION OF TWO ADDITIONAL WITNESSES

17. The two additional witnesses are Ruth Michael and Elizabeth Michael. Mr Gene submits that the appellant was ambushed when the State, at the 11th hour, introduced these two women as additional witnesses. The argument is based on the contention that their witness statements did not form part of the court depositions and that the appellant and his counsel, Mr Oiveka, were given insufficient notice that they would be giving evidence. This is said to be a breach of the right to a fair trial, in particular a breach of Section 37(4) (c) of the Constitution, which provides that a person charged with an offence shall be given adequate time and facilities for the preparation of his defence.

18. I regard this ground of appeal as a vague allegation unsupported by proper references to the District Court record or by sworn statements by either the appellant or his counsel, Mr Oiveka that would enable this court to conclude that the District Court had dealt with the matter unfairly.

19. It is beyond argument that the appellant was entitled as of right to a fair trial. He had to be given adequate time to prepare his defence. It is quite another thing to prove that he was denied that right. This is an appeal and the appellant bears the onus of proving that he was denied a fair trial. It is of little use for his counsel to argue that two additional witnesses were introduced at "the 11th hour". That is a very vague assertion. Likewise the argument that the witness statements of Ruth Michael and Elizabeth Michael did not form part of the depositions is, without showing this court, clearly, what comprised the depositions, of little value.

20. I dismiss this ground of appeal.

GROUND 3: REJECTION OF THE TWO PASSENGERS’ EVIDENCE

21. Mr Gene submits that the District Court erred by rejecting the evidence of Ms Brown and Ms Nomi for no good reason.

22. I do not think it is correct to say that the learned magistrate rejected the evidence of Ms Brown or Ms Nomi. His Worship said that their evidence seemed to support the defence case; so he was critical of the police prosecutor for introducing their witness statements as part of the State’s case. In his analysis of the evidence his Worship noted that the evidence of Ms Brown and Ms Nomi contradicted that of other police witnesses and supported the defence case. His Worship was really only stating the obvious.

23. His Worship also noted that neither Ms Brown nor Ms Nomi gave oral evidence. In fact no witnesses gave oral evidence for the defence.

24. I can detect no error of law in the manner in which the learned magistrate dealt with the evidence of the two passengers.

25. I dismiss this ground of appeal.

GROUND 4: TRIAL ORDERED TO PROCEED IN ABSENCE OF DEFENCE COUNSEL

26. Mr Gene submitted that there was a miscarriage of justice as the District Court decided the case on a fact which never took place during the trial. The learned magistrate stated in his written judgment that the evidence given by the State witnesses was subject to cross-examination by the defence counsel. Mr Gene’s contention is that Mr Oiveka was in Port Moresby at critical times of the trial attending his brother’s funeral. However his Worship just went ahead and continued the trial in the absence of the defence counsel.

27. I make the same point on this ground of appeal as I did in relation to ground 2. If an appellant wants to argue that there was some procedural irregularity in the court below, he must prove that that irregularity occurred. This is done by pointing the appellate court to the record of the court below, clearly identifying when and how the irregularity occurred. If the record of the court below is incomplete or unreliable, leave should be sought to adduce evidence to prove the procedural irregularity.

28. Here it is not at all clear that Mr Oiveka was absent at critical times of the trial. Nor it is clear that his Worship was informed of Mr Oiveka’s absence or that he unreasonably refused an adjournment on the ground that the defence counsel was not available. It is a vague allegation unsupported by reference to the record of the District Court or by any evidence of irregularity.

29. One thing is clear: Mr Oiveka filed at least two written submissions in the course of the trial. The first was a no-case submission, which was refused. Then, on 26 October 2006, Mr Oiveka filed a written document entitled "final submissions". Those submissions contained no complaint of any irregularity in the reception of evidence by the District Court.

30. The appellant has failed to discharge the burden of establishing any procedural irregularity or procedural unfairness.

31. I therefore dismiss this ground of appeal.

CONCLUSION

32. When the Supreme Court hears an appeal against a conviction in the National Court the Supreme Court must be satisfied that there is, in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict, before the appeal will be allowed (John Beng v The State [1977] PNGLR 115). The same principle should guide the National Court when it hears appeals against convictions entered by the District Court.

33. Here, none of the grounds of appeal have been upheld. The appellant has not been able to establish that the learned magistrate committed any error of law or procedure before arriving at the guilty verdict. There is no reasonable doubt as to the safeness or satisfactoriness of the verdict.

34. I am satisfied that there has been no miscarriage of justice for the purposes of Section 230(2) of the District Courts Act.

35. It follows that the appeal must be dismissed.

ORDER

(1) The appeal is dismissed.

(2) The order of the Kimbe District Court finding the appellant guilty of dangerous driving causing death and sentencing him to two years imprisonment is confirmed.

(3) The appellant shall be committed to custody forthwith, having been on bail pending determination of this appeal.

Paul Paraka Lawyers: Lawyers for the appellant
Public Prosecutor: Lawyer for the respondent