Peng v The State [1982] PGSC 15; [1982] PNGLR 331 (6 September 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 331 - John Peng v The State 

[1982] PNGLR 331

SC233

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN PENG

V

THE STATE

Waigani

Kidu CJ Pratt McDermott JJ

28-29 June 1982

28-30 July 1982

2 August 1982

6 September 1982

CRIMINAL LAW - Appeal - Evidence - “Fresh evidence” - What constitutes - Supreme Court Act 1975, s. 6(1)(a).

APPEAL - Evidence - “Fresh evidence” - What constitutes - Supreme Court Act 1975, s. 6(1)(a).

On an appeal to the Supreme Court, the Court may, under the Supreme Court Act 1975, s. 6(1)(a):

“allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it”.

Held

“Fresh evidence” for the purpose of s. 6(1)(a) is new evidence that is relevant, credible, admissible according to the rules of evidence and of such a character that combined with the evidence already given at the trial the result in the minds of reasonable men ought to be affected.

Cases Cited

Craig v. The King [1933] HCA 41; (1933) 49 C.L.R. 429.

James Neap v. The State (Unreported Supreme Court judgment No. SC228, dated 3rd May, 1982).

Johnson v. Johnson [1899] UKLawRpPro 41; [1900] P. 19; 69 L.J.P. 13.

Lawless v. The Queen [1979] HCA 49; (1979) 142 C.L.R. 659; 53 A.L.J.R. 733.

Papua New Guinea, The Government of, and Davis v. Barker [1977] P.N.G.L.R. 386.

R. v. Aldrich [1962] Crim. L.R. 541.

R. v. Ditch (1969) 53 Cr. App. R. 627.

R. v. Flower and Ors (1966) 50 Cr. App. R. 22.

R. v. Lattimore and Ors (1976) 62 Cr. App. R. 53.

R. v. Liosatos [1964] S.A.S.R. 40.

R. v. McDermott (No. 1) [1947] NSWStRp 16; (1947) 47 S.R. (N.S.W.) 379.Ross v. The King [1922] VicLawRp 14; [1922] V.L.R. 329.

R. v. Medical Appeal Tribunal (North Midland Region) [1959] 2 Q.B. 408.

R. v. Parks (1962) 46 Cr. App. R. 29.

R. v. Robinson [1917] 2 K.B. 108.

R. v. Sichel [1913] NSWStRp 30; (1913) 13 S.R. (N.S.W.) 259.

R. v. Thomas (1959) 43 Cr. App. R. 210.

R. v. Williams (1964) Crim. L.R. 90.

Raphael Warakau v. The State (Unreported Supreme Court judgment No. SC184, dated 3rd November, 1980).

Ratten v. The Queen [1974] HCA 35; (1974) 131 C.L.R. 510.

Reen and Lintott (1909) 2 Cr. App. R. 310.

Ross v. The King [1922] VicLawRp 14; [1922] V.L.R. 329.

Appeal

This was an appeal against conviction on a charge of wilful murder on which the State sought to introduce new evidence.

Counsel

I. Nwokolo, for the appellant.

J. Byrne, for the State.

Cur. adv. vult.

28 July 1982

KIDU CJ PRATT MCDERMOTT JJ: The appellant appeals against his conviction of the wilful murder of a policeman. The trial evidence was circumstantial. The accused, an escapee from lawful custody, was at a dance place when the police arrived to arrest him. He fought them, called upon his clan for help and in the ensuing mêlée scaped with others. Sometime later a policeman was found dead not far from this scene in circumstances indicating he had been killed. Some women later came by and were told by one of four men that there was a drunk man. One of these four has also been convicted of the murder of this policeman. Next day the accused was arrested. He was wearing a T-shirt stained with blood of the same group as the deceased. He denied wearing this garment on the night of the murder.

Counsel for the State seeks to introduce new evidence—a statement made by the accused to the investigating officer after the trial in which the murderer is named and thus putting the accused at the scene. This is contrary to his defence.

This evidence, if admitted, is clearly of importance.

Mr. Byrne simply relies upon s. 6(1)(a) of the Supreme Court Act 1975, which reads:

APPEAL TO BE BY WAY OF REHEARING

N2>(1)      An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court:

(a)      “to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; ...”

Counsel neither advanced argument nor relied upon authority which could assist this Court in its interpretation. The issue is important. We have had to research the matter. This is not the primary function of a court. Assistance from the Bar table is essential to the proper administration of the law.

Section 8 also has some relevance to the approach of appeal courts in other jurisdictions.

N2>8.       SUPPLEMENTAL POWERS OF SUPREME COURT

(1)      For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so:

(a)      order the production of any document, exhibit or other things connected with the proceedings the production of which appears to it necessary for the determination of the case; and

(b)      order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether or not they were called at the trial, or order any such person to be examined on oath before—

N5>(i)       a judge of the National Court; or

N5>(ii)      an officer of the Supreme Court; or

N5>(iii)     a magistrate of a court of summary jurisdiction; or

N5>(iv)     any other person appointed by the court for the purpose, and may admit as evidence any deposition so taken; and

(c)      receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with that consent; and

(d)      where any question arising on the appeal involves prolonged examination of documents of accounts or any scientific or local investigation that cannot, in the opinion of the court, conveniently be conducted before the court—order the reference of the question for inquiry and report, in accordance with Part IV., by a referee appointed by the court and act on the report of the referee so far as it thinks fit to adopt it; and

(e)      exercise in relation to the proceedings of the court any other powers that may for the time being be exercised by the National Court on appeals or applications; and

(f)      issue any warrants necessary for enforcing the orders or sentences of the court.

(2)      The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under sub-section (1).

The Shorter Oxford Dictionary gives similar definitions of “fresh” and “new”. Clearly the evidence was not available at the trial, it came into existence afterwards. The meaning of “fresh evidence” has been judicially considered in the English cases dealing with s. 7 and s. 8 of the Summary Jurisdiction (Married Women) Act 1895 (U.K.) where these words form part of s. 7.

In Johnson v. Johnson [1899] UKLawRpPro 41; [1900] P. 19, the President (Sir F. H. Jeune) said:

“It means practically the same sort of evidence as that upon which a new trial would, in the ordinary course, be granted: it must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come to his knowledge before that time.”

This view has been applied in numerous later cases.

The words “fresh evidence” also appear in s. 40 of the National Insurance (Industrial Injuries) Act 1953 (U.K.). In R. v. Medical Appeal Tribunal (North Midland Region) [1959] 2 Q.B. 408, Morris L.J. said of these words, at pp. 422-433:

“If a term with a legal meaning is employed, it is reasonable to consider that the term is employed with its accepted meaning. ... ‘Fresh evidence’, it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable.”

After considering Johnson’s case he said at p. 424:

“The definition adopted by the medical appeal tribunal was this: fresh evidence means some evidence which the claimant was unable to produce before the decision was given, or which he could not reasonably be expected to have produced in the circumstances of the case. In my judgment, that definition is in no way erroneous.”

As s. 6 Supreme Court Act appears to have no counterpart elsewhere, the approach to its interpretation can be seen through the interpretation given to equivalent s. 8 provisions in other jurisdictions:

N2>1.       Section 9 Criminal Appeal Act 1907 (U.K.); and

N2>2.       Section 12 Criminal Appeal Act (N.S.W.).

As interpretative background in the United Kingdom until 1964, there was no general new trial provision unless the original trial was a nullity. In New South Wales, new trial provisions existed in a form similar to s. 28 of the Supreme Court Act (P.N.G.).

The English view is not consistent. R. v. Robinson [1917] 2 K.B. 108, was a case where a convicted murderer wrote saying “I tell you now that I am guilty of the crime.” The letter was destroyed. On appeal by the prisoner, the Crown called evidence of the letter. Viscount Reading said, at p. 110:

“It is quite clear that the Court of Appeal would, in civil matters, have the power to admit fresh evidence which the Court thought might throw material light upon the matter before it. The jurisdiction must always be exercised with great care, but, as it is admitted that the evidence will throw light upon the present case, we have come to the conclusion that it ought to be admitted.”

Reliance was placed on s. 9, of which further mention will be made.

In R. v. Aldrich [1962] Crim. L.R. 541, R. v. Williams [1964] Crim. L.R. 90, and R. v. Thomas (1959) 43 Cr. App. R. 210, the view was that evidence about occurrences after conviction could not be given on appeal. These were matters in which the proper course was to lodge a petition with the Home Secretary. It appears similar powers exist here: see Constitution, ss. 151, 152. These cases concerned evidence showing innocence. This application has to deal with evidence allegedly strengthening conviction.

In Williams (supra) one co-defendant said the other had nothing to do with it; in Thomas (supra) the complainant later admitted she gave false evidence. Notwithstanding Robinson (supra) the court said the Criminal Appeal Act (U.K.) made no provision for this evidence expressly. The proper course was to lodge a petition. However, it heard the evidence de bene esse and postponed its ruling as to the court’s power of discretion finding that the evidence:

N2>(a)      did not have sufficient weight;

N2>(b)      lacked reliability; and

N2>(c)      would not have affected the jury’s decision at the trial.

A similar approach was adopted by the Court of Criminal Appeal in R. v. Ditch (1969) 53 Cr. App. R. 627, at pp. 631-632, though it is difficult to understand why Robinson (supra) is disapproved in light of the fact that s. 9 of the 1907 Criminal Appeal Act allowed that court to “exercise ... any other powers which may for the time being be exercised by the Court of Appeal on appeals in civil matters.” Order 58, r. 4 of the English Rules of the Supreme Court which was specifically referred to in Robinson (supra), permitted the Court of Appeal “to receive further evidence upon questions of fact ... Such further evidence may be given without special leave ... in any case as to matters which have occurred after the date of the decision from which the appeal is brought.”

R. v. Parks (1962) 46 Cr. App. R. 29, was an appeal where it was said that the principles allowing further evidence are kept within narrow confines—otherwise in every case the Court of Appeal would be in effect asked to effect a new trial. The s. 9 power is wide and is left entirely to the discretion of the court acting upon the following principles, at p. 32:

“First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this Court to decide whether it is to be believed or not, but evidence which is capable of belief. Fourthly, the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.”

These principles have been accepted as part of the law in Papua New Guinea since Independence: The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386; Raphael Warakau v. The State (Unreported Supreme Court judgment SC184, dated 3rd November 1980); and James Neap v. The State (Unreported Supreme Court judgment SC228, dated 3rd May 1982).

The 1968 Criminal Appeal Act (U.K.), s. 23 (the old s. 9) further defined the powers of the court to admit new evidence. In a 1975 appeal, R. v. Lattimore and Others (1976) 62 Cr. App. R. 53, a case of strangulation and arson, the appellant relied upon the evidence of experts in establishing the times of death and of the fire in contradiction of admissions in the record of interview. The appeal court allowed fresh evidence to be given by experts at the trial, allowed further medical witnesses and also allowed the Crown to call a fire expert and a forensic pathologist. At p. 56 the following was said:

“Of course, it is common sense that the Court will not receive evidence under sub-s. (1) if satisfied that it ‘would not afford any ground for allowing the appeal’: for its reception would not be ‘necessary’ in the interests of justice. It is also inconceivable that the Court would receive inadmissible evidence: for the Court must act according to law. But these curbs upon the discretion arise not from the fact that they happen to be mentioned in sub-s. (2), but from the terms of sub-s. (1) and the general law, including the law of evidence.”

The New South Wales, as does the Australian approach generally, evolves from the long existing powers for a new trial, where admissibility is decided in the light of a possible miscarriage of justice. See for example, Ross v. The King [1922] VicLawRp 14; [1922] V.L.R. 329; R. v. Liosatos [1964] S.A.S.R. 40; R. v. Sichel [1913] NSWStRp 30; (1913) 13 S.R. (N.S.W.) 259, and Lawless v. The Queen [1979] HCA 49; (1979) 142 C.L.R. 659; 53 A.L.J.R. 733.

The fresh evidence therefore has to have cogency, plausibility and relevancy, to be of such a character, when considered in combination with the evidence already given at the trial, that the result in the minds of reasonable men ought to be affected. See Craig v. The King [1933] HCA 41; (1933) 49 C.L.R. 429. In R. v. McDermott (No. 1) [1947] NSWStRp 16; (1947) 47 S.R. (N.S.W.) 379 at p. 382, the following was said, at p. 382:

“Hence, when the Court is asked to exercise the jurisdiction conferred on it by s. 12, to receive further evidence if it thinks it necessary or expedient to do so in the interests of justice, the dominant consideration must always be: Would the addition of the new evidence to the other evidence in the case be likely to cause a reasonable jury to doubt the appellant’s guilt?”

If the evidence would cause a doubt it was admitted and this may involve a new trial or acquittal. If the evidence would not cause a doubt, it was rejected. However considerations which are regarded as cogent in civil cases are not to be disregarded; the character of the proposed new witness i.e. credibility, the nature of the proposed new evidence and availability of it at trial. The court was of the view, that it all depended upon the nature of the case, the evidence already given and the nature and quality of the proposed new evidence.

In both jurisdictions reliance was placed on the judicial attitude to fresh evidence in civil trials. It is timely to refer to the words of Barwick C.J. in Ratten v. The Queen [1974] HCA 35; (1974) 131 C.L.R. 510, at pp. 516-517:

“However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence.”

At p. 520 he says:

“To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.”

Section 6 was first brought into existence with the enactment of the Supreme Court Act on Independence. It did not have a counterpart under the old Supreme Court (Full Court) Act. Its purpose apparently gives wide powers to the Supreme Court on the matter of fresh evidence. Whatever power as previously spelt out of the present s. 8 (then s. 15) combined with s. 28 (then s. 33) to permit the Old Full Court to receive fresh evidence, it would appear that s. 8 now occupies the role of a machinery provision for the purpose, inter alia, of implementing the powers granted under s. 6.

We are therefore of opinion that s. 6(1)(a) has been correctly invoked by the State in this application. If a party can show, that the evidence is “fresh” in the accepted judicial interpretation; that it is relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt, then a proper case exists where the court can exercise its discretion to admit it.

The facts in this application are unusual. The evidence is tendered to strengthen the circumstantial evidence leading to a conviction. Because of the nature of the appeal we consider this an important consideration, the evidence being admissible, therefore, to ascertain the justice of the case.

A number of English cases make it quite clear that even in jurisdictions in which juries operate, evidence from the witness box will be received before the Appeal Court where it is impossible to avoid such course. See for example Reen and Lintott (1909) 2 Cr. App. R. 310, Robinson (supra), R. v. Flower & Ors. (1966) 50 Cr. App. R. 22, Thomas (supra) and Ditch (supra). This Court has power (s. 8(1)(b)(i) of the Supreme Court Act), to order the taking of this evidence before another judge. Generally, we think that the preferable course. However, the evidence to be admitted goes directly to credit, a matter important in this appeal as the trial judge disbelieved the accused at his trial. As such an assessment will have to be made, presuming the appellant will want to establish his consistency and credibility, we reluctantly conclude the evidence will have to be tested in this Court.

From the appellant’s point of view however, not only may he be further cross-examined on matters of credit if he decides to enter the witness box but also to the general issue at large, as his statement now places him at the scene of the crime, quite contrary to his evidence before the trial judge.

JUDGMENT

6 SEPTEMBER 1982

[On Sept. 6 their Honours delivered judgment on the appeal after hearing the evidence and concluded that the appeal should be quashed and a verdict of not guilty entered.]

Appeal allowed. Conviction quashed.

Solicitor for the appellant: Ikenna Nwokolo.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.