Abiari v The State (No 1) [1990] PGSC 5; [1990] PNGLR 250 (15 June 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 250 - Ted Abiari v The State (No 1) 

[1990] PNGLR 250

SC389

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ABIARI

V

THE STATE

Waigani

Kapi DCJ Amet Los JJ

2 March 1990

15 June 1990

APPEAL - Evidence - “Fresh evidence” - Where justice of case warrants -Must be admissible, relevant and cogent - Supreme Court Act (Ch No 37), s 6(1)(a).

APPEAL - Evidence - Additional evidence - Not “fresh evidence” - Power to allow - Where necessary or expedient in interests of justice - Separate head of power - Supreme Court Act (Ch No 37), s 8.

The Supreme Court Act (Ch No 37), s 6(1)(a), provides that an appeal to the Supreme Court shall be by way of rehearing on the evidence give in the court below “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”.

The Supreme Court Act, s 8, provides:

N2>“(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” — inter alia, order the examination of any persons who would have been compellable witnesses at the trial, whether or not they were called at the trial and receive the evidence, if tendered, of any competent witness.

Held

N1>(1)      For the purposes of the Supreme Court Act, s 6(1)(a), “fresh evidence” means:

N2>(a)      evidence that has become available since the hearing or trial;

N2>(b)      evidence that has come to the knowledge of the party applying since the hearing or trial and which could not by reasonable means have come to his knowledge before that time.

Johnson v Johnson [1899] UKLawRpPro 41; [1900] P 19 at 21 and R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408 at 422, 424, applied.

Busina Tabe v The State [1983] PNGLR 10 and John Peng v The State [1982] PNGLR 331, considered.

N1>(2)      Where evidence is “fresh evidence” so defined, it must also be relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt before the Supreme Court might exercise the discretion to allow it “where it is satisfied that the justice of the case warrants it”.

John Peng v The State [1982] PNGLR 331 at 337, followed.

N1>(3)      (Amet J dissenting) Where evidence sought to be adduced on appeal is not “fresh evidence”, the Supreme Court has power nonetheless, under the Supreme Court Act, s 8, to admit such evidence “if it thinks it necessary or expedient in the interests of justice to do so”. What is necessary or expedient in the interests of justice must be determined within the facts of each particular case.

Perry and Harvey (1909) 2 Cr App R 89 at 92 and Lattimore Salih and Leighton (1976) 62 Cr App R 53 at 55, adopted and applied.

Dicta in John Peng v The State [1982] PNGLR 331 at 337, disapproved.

N1>(4)      (Amet J dissenting) Evidence which was not “fresh evidence” but which alleged a conspiracy as to the evidence to be given on a murder trial, should be allowed on appeal against conviction pursuant to the Supreme Court Act (Ch No 37), s 8(1)(b).

Cases Cited

Bank of England v Vagliano Brothers [1891] UKLawRpAC 6; [1891] AC 107.

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253.

Busina Tabe v The State [1983] PNGLR 10.

Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386.

Green v The King [1939] HCA 4; (1938) 61 CLR 167.

Johnson v Johnson [1899] UKLawRpPro 41; [1900] P 19.

Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489; [1954] 3 All ER 745.

Neap v Independent State of Papua New Guinea (Supreme Court, SC 228, 3 May 1982, unreported).

Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 272.

Peng v The State [1982] PNGLR 331.

R v Hare [1910] NZGazLawRp 50; [1910] 29 NZLR 641.

R v Home Secretary; Ex parte Momin Ali [1984] 1 WLR 663.

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

R v Martyr [1962] Qd R 398.

R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408.

R v Perry and Harvey (1909) 2 Cr App R 89.

R v Robinson [1917] 2 KB 108.

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

R v Williams (1964) Crim LR 90.

Raphael Warakau v The State (Supreme Court, No SC184, 3 November 1980, unreported).

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510.

Straits Contracting (PNG) Pty Ltd v Branfill Investment Ltd [1988] PNGLR 239.

Sutcliffe v Pressdram Ltd [1990] 2 WLR 271; [1990] 1 All ER 269.

Ward v The Queen [1972] WAR 36.

Appeal - Application

This was a preliminary application in an appeal against conviction of murder, to be permitted to call evidence not adduced at the trial.

Counsel

G Langtry, for the appellant.

S L Soi, for the respondent.

Cur adv vult

15 June 1990

KAPI DCJ: This is an appeal from a decision of the National Court against a conviction of murder. At the hearing of the appeal, counsel for the appellant sought to adduce fresh evidence under the provisions of the appellant sought to adduce fresh evidence under the provisions of the Supreme Court Act (Ch No 37). The Court heard submissions from both parties on the question of the nature of the fresh evidence and has reserved its decision on this matter before dealing with the merits of the appeal.

It is said that the principles relating to admissibility of fresh evidence on appeal are well settled in the reported cases commencing with the case of Government of Papua New Guinea and Davis v Barker [1977] 386; Raphael Warakau v The State (Supreme Court, No SC184, 3 November 1980, unreported), James Neap v PNG (Supreme Court, No SC228, 3 May 1982, unreported), John Peng v The State [1982] PNGLR 331 and Busina Tabe v The State [1983] PNGLR 10.

Adducement of fresh evidence on appeal in this jurisdiction is governed by s 6(1)(a) of the Supreme Court Act (Ch No 37):

N2>“6.      Appeal to be by way of rehearing

(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: and ...”

An examination of the Government of Papua New Guinea and Davis v Barker, Raphael Warakau v The State, and James Neap v PNG reveal that they adopted principles of the common law. These cases fell into error in this regard. The discretion of the Court in admitting fresh evidence is now governed by s 6(1)(a) of the Supreme Court Act (Ch No 37) and not the common law. The scope of discretion granted by other provisions of the Act such as s 8 is exceptionally wider than the common law. I will return to this matter later.

The exercise of discretion under s 6(1)(a) of the Supreme Court Act (Ch No 37) was considered in the case of John Peng v The State. Before going to the terms of this provision, I wish to make some general remarks. The principles of common law cannot be readily introduced into the interpretation of the provisions of a statute. In Bank of England v Vagliano Brothers [1891] UKLawRpAC 6; [1891] AC 107 at 145, Lord Herschell, in dealing with the Bills of Exchange Act 1882 (Eng) said:

“I think the proper cause is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

If a statute, intended to embody in a code a particular branch of the law, if to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon the knowledge of the exact effect even of an absolute proceeding such as a demurrer to evidence. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the Code. If, for example, a provision be of doubtful input, such resort would be perfectly legitimate. Or, again, if in the code of the law of negotiable instruments words be found which previously acquired a technical meaning, or being used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the Code. I give these as examples merely, they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground.”

See also Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, R v Hare [1910] NZGazLawRp 50; [1910] 29 NZLR 641, R v Martyr [1962] Qd R 398 and Ward v The Queen [1972] WAR 36.

The English and the Australian cases which deal with “fresh evidence” involve the interpretation and application of the equivalent of s 8 of the Supreme Court Act (Ch No 37). This section has not used the words “fresh evidence”. I should also add that in the English and Australian cases the relevant statutes do not have the equivalent of s 6 of our Supreme Court Act later on in my judgment.

I now turn to the terms of 6(1)(a) of the Supreme Court Act (Ch No 37). There are two elements in this provision. First, it deals with a category of evidence — “fresh evidence”. Secondly, such evidence is to be adduced or admitted “where it is satisfied that the justice of the case warrants it”. What then is the meaning of “fresh evidence”? The Supreme Court considered this issue in John Peng v The State. The Supreme Court said (at 334):

“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:

1.       Section 9 Criminal Appeal Act 1907 UK; and

2.       Section 12 Criminal Appeal Act 1912 (NSW).”

After having dealt with the various decisions in England and in other states of the Commonwealth of Australia the Court continued (at 337):

“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.”

It is clear from this passage that the Supreme Court adopted cases in England and in Australia dealing with the equivalent of s 8 of the Supreme Court Act (Ch No 37) to interpret s 6(1)(a). With respect the best assistance the Court could gain from the English decisions were the cases of Johnson v Johnson [1899] UKLawRpPro 41; [1900] P 19 and R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408. These two cases dealt with the interpretation of legislation which use the words “fresh evidence”.

In Johnson v Johnson the Court was concerned with the meaning of “fresh evidence” within the meaning of s 7 of the Summary Jurisdiction (Married Women) Act 1895 (UK) which reads as follows:

“A court of summary jurisdiction acting with the city, borough, petty sessional or other division or district, in which any order under this Act or the Acts mentioned in the schedule hereto, or either of them, has been made, may, on the application of a married woman or of her husband and upon cause being shown upon fresh evidence to the satisfaction of the court, at any time alter, vary, or discharge any such order, and may upon any such application from time to time increase or diminish the amount of any weekly payment ordered to be made, so that the same do not in any case exceed the weekly sum of two pounds.”

The President (Sir F H Jeune) said (at 21):

“But it is necessary that magistrates should clearly understand what ‘fresh evidence’ means, though, in my view, there is no real doubt about it. 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. It must amount to what was called in the old forms of pleading res noviter ad notifiam perventa. It is altogether a mistake to suppose that ‘fresh evidence’, within the meaning of the Act of 1895, means or includes evidence which could have been called, but which was not in fact adduced, at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, based on evidence which might have been tendered in the first instance. I have no hesitation in saying that to the words ‘fresh evidence’ in s 7 must be assigned the limited meaning and scopewhich I have indicated.”

In R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble, the Court there was again concerned with the meaning of the words “fresh evidence” in s 40(1) of the National Insurance (Industrial Injuries) Act 1946 (UK) as follows:

“Any decision under this Act of a Medical Board or a Medical Appeal Tribunal may be reviewed at anytime by a Medical Board if satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the claimant or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent).”

Morris LJ said (at 422):

“It seems to me that the words ‘fresh evidence’ bear the same meaning in s 40 as they do in s 50. They are words which have been considered by the courts, and as Parliament has employed them in certain contexts in this legislation, it is reasonable to give them due and proper meaning. If a term with a legal meaning is employed, it is reasonable to consider that the term is employed with its accepted meaning.”

Morris LJ then made reference to Johnson v Johnson and adopted the definition of fresh evidence given by the Medical Appeal Tribunal (at 424):

“... fresh evidence means some evidence, which the claimant was unable to produce before the decision was given, or which he could not have been reasonably expected to produce in the circumstances of the case. In my judgment, that definition is in no way erroneous.”

Ormerod and Willner LJJ agreed with Morris LJ. For the purposes of interpretation of “fresh evidence” in s 6(1)(a) of the Supreme Court Act (Ch No 37), I would adopt the limited meaning and scope of the words “fresh evidence” in these two cases. “Fresh evidence” means something that has happened since the 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 narrow definition of “fresh evidence” appeared to have been accepted also in the case of Busina Tabe v The State. In that case the evidence of a bank teller was in existence and known to both counsel at the trial but was not led in evidence either by the prosecution or the defence. Kaputin J said (at 12):

“But the new material in question is not fresh evidence at all. It was in existence at the time of the trial and both the prosecutor and the defence counsel knew about it. The defence counsel could have adduced it with little effort, yet he did nothing about it for reasons known only to himself.”

McDermott J, with whom Gajewicz J agreed (at 16) having referred to a passage in John Peng’s case concluded:

“In my opinion, the new evidence is not encompassed by this summary, whilst it appears relevant, credible, admissible and causes a doubt, it is just not ‘fresh’.”

Even though the Supreme Court in Busina Tabe’s case reached the conclusion that the evidence of the bank teller was not “fresh evidence” within the meaning of those words under s 6(1)(a) of the Supreme Court Act (Ch No 37), they nevertheless concluded that in the exercise of their discretion they should admit this evidence on appeal. In my view the conclusion reached in Busina Tabe’s case is a correct exercise of discretion but it cannot be supported and does not come within the words of s 6(1)(a) of the Supreme Court Act (Ch No 37). As I have concluded, the exercise of discretion under s 6(1)(a) is limited to “fresh evidence” in the narrow sense. However, the conclusion in Busina Tabe’s case can be supported and comes within the scope of s 8 of the Supreme Court Act (Ch No 37). I will deal with this section later on in my judgment.

Any evidence which comes within the meaning of “fresh evidence” in accordance with s 6(1)(a) of the Supreme Court Act (Ch No 37) does not automatically become admissible on appeal. Whether or not such evidence may be adduced on appeal is governed by the words “where it is satisfied that the justice of the case warrants it” under s 6(1)(a) of the Supreme Court Act (Ch No 37). In John Peng v The State (at 337). the Supreme Court concluded that, in exercising its discretion with regard to any “fresh evidence”, such evidence must be:

“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.”

Applying these principles to the evidence which is proposed to be called, it is clear that none of this evidence comes within the meaning of “fresh evidence”. Peter Ruagura was a witness named on the indictment in the trial and his evidence was available to both the State and the defence but he was not called at the trial. The other evidence is evidence of Adolf Afasi. This witness originally gave a statement to the police but it was not used as part of the evidence at the committal proceedings. It would appear, therefore, that the evidence by this witness was not made available to the defence in the committal papers. There is no evidence to suggest that the statement by this witness was made available to the defence. However, defence counsel was made aware of this witness during and before the trial concluded. In fact, defence counsel took instructions from this witness one hour before the trial concluded, that is, before judgment and sentence was imposed. As the evidence became available to the defence during the trial and not after trial, it does not come within the narrow meaning of “fresh evidence” under s 6(1)(a) of the Supreme Court Act (Ch No 37), The applicant can gain very little assistance from s 6(1)(a) of the Supreme Court Act (Ch No 37).

In my view, that is not the end of the matter. Section 8 of the Supreme Court Act (Ch No 37) is relevant. It is in the following terms:

N2>“(1)    Supplemental powers of Supreme Court. 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 thing 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:

(i)       a Judge of the National Court; or

(ii)      an officer of the Supreme Court; or

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

(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 or 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.

N2>(2)      The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1).”

The Supreme Court in John Peng v The State set out s 8 of the Act and said (at 337):

“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.”

This passage in so far as it relates to the application of s 8 is obiter dicta as the Supreme Court was only concerned with the application of s 6 of the Supreme Court Act (Ch No 37). With respect, s 8 of the Supreme Court Act (Ch No 37) is not a machinery provision for purposes of s 6 of the Act but is a grant of power quite separate from s 6 of the Act.

The nature of the power under s 8 of the Supreme Court Act (Ch No 37) may be seen from the English decisions. The first is the case of R v Perry and Harvey (1909) 2 Cr App R 89. The provision under consideration, although it is not set out in the judgment, was s 9 of the Criminal Appeal Act 1907 (UK). Section 8(1) of the Supreme Court Act (Ch No 37) is in exactly the same terms. Insofar as it is relevant to the present appeal, in that case, certain witnesses were not called at the trial even though they were present on subpoena. Apparently a decision was taken by counsel not to call them. On appeal the appellant’s counsel sought to call these witnesses. Such evidence could not qualify as “fresh evidence”. Walton J, in considering the applications, said (at pp 92-93):

“We are asked to quash the conviction upon hearing these two witnesses and weighing their evidence against that of the others whom we should not hear orally, unless we did that which, undoubtedly, we have power to do, viz, hear all the witnesses again. But we ought not to substitute a trial by three judges for a trial by jury, unless it is clearly made out that justice requires it. We have no power to order a new trial. The defendant’s counsel deliberately elected to abandon this evidence in order to have the last word with the jury, and relying upon the jury seeing the horse.

On the other hand, in my opinion, this Court ought not to consider itself bound by any hard and fast rule never to allow further evidence to be called where the fact that it was not called at the trial was due to the mistaken conduct of the case by the prisoner or by his advisers. If it was plainly made out that justice required it, I think this Court would interfere to protect a man from the result of bad management or misconduct of his case at the trial.”

The next case is R v Lattimore Salih and Leighton (1976) 62 Cr App R 53. This was a reference to the Court by the Home Secretary under s 17(1)(a) of the Criminal Appeal Act 1968 (UK). In the course of the judgment the court dealt with s 23(1) of the Criminal Appeal Act of 1968 (UK). This provision replaced the Criminal Appeal Act of 1907 and it is in the following terms:

N2>“23(1) For purposes of this part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice:

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

(b)      order any witness who would have been compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and

(c)      subject to subsection (3) below, receive the evidence, if tendered, of any witness.

N2>(2)      Without prejudice to subsection (1) above, where evidence is tendered to the Court of Appeal thereunder, the Court shall, unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise their power of receiving it if:

(a)      it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b)      they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

N2>(3)      Subsection (1)(c) above applies to any witness (including the appellant) who is competent but not compellable, and applies also to the appellant’s husband or wife where the appellant makes an application for the purpose and the evidence of the husband or wife could not have been given in the proceedings from which the appeal lies except on such an application.

N2>(4)      For the purposes of this part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interest of justice, order the examination of any witnesses whose attendance might be required under subsection (1)(b) above to be conducted, in a manner provided by Rules of Court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.”

This section is in similar terms to s 8 of the Supreme Court Act (Ch No 37) except for subs (2) and a slight difference in the arrangements of the subsections. In this case on the hearing before the Court of Appeal, counsel for the appellants sought to lead further evidence of expert witnesses who were called at the trial. There was objection to the reception of this evidence. It was contended by counsel opposing this evidence that these witnesses who were called at the trial were now being sought to give further evidence to modify their evidence that was given at the trial and to show their evidence may have been misunderstood by the trial judge. In considering the submissions the Court said (at 55):

“Notwithstanding some emphatic judicial declarations of the true position (for example by Edmond Davis LJ in R v Merry [1970] 54 Cr App R 274 at the bottom of 275 and the top of 276), it is our experience that confusion persists as to the relationship between subs (1) and (2) of s 23 of the Criminal Appeal Act 1968. Subsection (2) imposes a duty upon the court to receive further evidence, if the conditions of the subsection are met. But the subsection in no way restricts the power to receive further evidence under subs (1), if the court thinks it necessary or expedient in the interests of justice. Thus there will be cases in which, though the conditions of subs(2) are not met and there is no requirement that the court must receive the tendered evidence, the court may do so, if it thinks it necessary or expedient in the interests of justice.

In exercising its discretion to receive further evidence under subs (1), the Court will bear in mind warnings such as that given by Edmond Davis LJ in Stafford and Luvaglio v DPP (1969) 53 Cr App R 1 at 3, when he said: ‘public mischief would ensue and legal process could become indefinitely prolonged, were it the case that evidence produced at any time would generally be admitted by this Court when verdicts are being reviewed.’ As the Lord Justice went on to say ‘there must be some curbs, the section specifies them’. His warning is to be heeded; but we do not understand the Lord Justice to have been saying that, as a matter of statutory interpretation, the conditions specified in subs (2) are to be imported into subs (1) so that, unless those conditions are found to exist the discretion conferred by subs (1) is not to be exercised in favour of receiving the further evidence. Of course, in the exercise of its discretion, the Court will have regard, as Lord Parker CJ said in R v Parks (1962) 46 Cr App R 29 at 32, to matters such as the availability of the evidence at trial, and its likely credibility. Parliament by subs (1) has placed upon the Court the power to do what it thinks necessary or expedient in the interests of justice: the burden of the power is heavy, but may not be off-loaded by treating the conditions specified in subs (2) as decisive in the exercise of the discretion under subs (1).

Of course, it is common sense that the Court will not receive evidence under subs (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 subs (2), but from the terms of subs (1) and the general law, including the law of evidence.

The obligation to receive further evidence imposed by subs (2) is new law: the obligation did not exist prior to the enactment of s 5 of the Criminal Appeal Act 1966 (UK), which it reproduces. The discretionary power is very much older: it was originally conferred by s 9(1) of the Criminal Appeal Act 1907, of which Walton J said in Perry and Harvey (1909) 2 Cr App R 89 at 92:

‘In my opinion this Court ought not to consider itself bound by any hard and fast rule never to allow further evidence to be called when the fact that it was not called was due to the mistaken conduct of the case ... If it was plainly made out that justice required it, I think this Court would interfere.’ ”

In applying the principles to the facts of the case the court continued (at 56):

“All the evidence tendered to us could have been adduced at the trial: indeed three of the witnesses, whom we have heard — the fire experts Mr Craven and Mr North, and Professor Cameron, the pathologist — did give evidence at the trial. Nevertheless we have thought it necessary, exercising our discretion in the interests of justice, to receive not only the evidence of these three, but also that of Professor Teare and a written report of Professor Simson and this course has been justified in the result, for it is upon the strength of their evidence that we think the verdicts of guilty on the counts charging murder and arson at 27 Doggett Road are unsafe and unsatisfactory and must be quashed.”

The relevant provision under consideration is s 8(1)(b) of the Supreme Court Act (Ch No 37). It is clear from the two cases referred to that the nature of the power granted under s 8 goes far beyond the limited scope of s 6(1)(a) of the Supreme Court Act (Ch No 37). The evidence referred to in s 8 need not be confined to fresh evidence as defined in a s 6(1)(a). There is nothing in s 8 which would so confine it. I would adopt the interpretation given by the English Court of Appeal in relation to the equivalent of s 8 in England in the above cases. The manner in which the power under s 8 of the Act may be exercised is to be governed by the words “the Supreme Court may, if it thinks it necessary or expedient in the interests of justice”. It is clear to me that “the interests of justice” will override all other considerations. What is necessary or expedient in the interests of justice must be determined within the facts of each particular case.

The conclusion reached in Busina Tabe v The State would fall within s 8 of the Supreme Court Act (Ch No 37). Even though the evidence of the bank teller was not “fresh” within the meaning of s 6(1)(a) it was “necessary and expedient in the interest of justice” that that evidence should be admitted in order to do justice. In the judgment of McDermott J, he made express reference to R v Lattimore Salih and Leighton and R v Perry and Harvey, the cases which I have just referred to in my judgment. However, he failed to make reference to s 8 of the Supreme Court Act (Ch No 37).

The nature of the evidence to be called relates to the identity of the appellant as the person responsible for the delivery of the fatal blow. The State case is based on eye-witnesses who identified the appellant.

The proposed evidence of Peter Ruagura relates to the credibility of Raphael Ruaf. He would say that Raphael Ruaf was not at the camp at the time of the commotion and therefore could not have given evidence of identification. This evidence would also go to the credibility of the evidence of Pius Ivara who stated that he was with Raphael Ruaf.

The evidence of Adolf Afasi significantly refers to a conspiracy by the witnesses. He states that the campers were annoyed by the appellant, that they decided to give evidence against the appellant even though they did not see what actually happened. This witness will say that the police tried to get him to say that he saw the appellant. He refused to say this. The police did not include his statement in the committal proceedings. This witness is not related to the appellant.

At the point of this application, when only the nature of the evidence is revealed (we have not yet heard the evidence), the question is whether it is apparently credible if believed, and whether or not it would give a reasonable man cause to doubt the conviction. Upon satisfying itself on these matters the court would consider whether to exercise its discretion to admit the evidence. That is a question of admissibility.

Whether the court finds the evidence to be credible or whether there is a doubt is to be determined from all the evidence. That is the evidence that was given at the trial and the further evidence led under s 8 of the Supreme Court Act (Ch No 37).

In this case the nature of the evidence to be led revolves around the allegations of a conspiracy by all the State witnesses to blame the appellant. Adolf Afasi is not a relative of either the deceased or the appellant. He alleges that the police attempted to get him to agree that he saw the appellant deliver the fatal blow. He refused to agree. The police did not include a statement by this witness as part of the handup brief for purposes of the committal proceedings.

The evidence of Peter Ruagura simply goes to support the story of conspiracy in that he says certain key State witnesses were not present at the relevant time.

I consider that the allegation by Adolf Afasi cannot be easily dismissed. It appears to be credible. The police not only did not inform him of the trial but did rely on his evidence for the purposes of the committals. Presumably this was done on the basis that it was not helpful to their case.

The evidence is such that it would cause a reasonable man to doubt the conviction. The allegation of conspiracy goes to the very basis of the State case. I have also considered the conduct of Mr Mosoro in not applying to adjourn the case to call these witnesses. The evidence of Adolf Afasi became available at a very late stage of the trial. I bear in mind that he did not get full instructions until later on. However, the nature of the evidence is such that I would not allow this consideration to override the “interest of justice”.

In the exercise of my discretion I would allow the appellant to call these two witnesses to give evidence.

AMET J: This is a preliminary application by the appellant to be permitted to call “fresh evidence”. The evidence sought to be called as fresh is of two witnesses, the proofs of their evidence to be called have been deposed to in affidavits and produced to the Court for preliminary consideration.

One of the proposed witnesses, Peter Ruagura, was a witness named on the indictment in the trial before the Chief Justice but was not called by either side. He had sworn an affidavit for the purposes of the committal proceedings which was available on the file in the trial before the Chief Justice. The State chose not to call this witness in its case. Mr Michael Mosoro who was defence counsel swore an affidavit which was presented to us. He gave no explanation as to why he did not call this witness because the affidavit that has now been annexed to the fresh affidavit of this witness was in fact available to the defence at the trial.

The second proposed witness, Adolf Afasi, was originally interviewed by the police for the purposes of the committal proceedings. He deposed in the affidavit that is now before us that he did give a statement to the police but was not required to sign an affidavit for the purposes of the committal proceedings. And so there is no affidavit by this witness for the committal proceedings, nor was he required as a witness in the trial proper. However, Mr Mosoro deposed in his affidavit that, in the early morning of 20 April 1989, the day judgment was handed down by the Chief Justice, he saw and had a verbal conversation with Adolf Afasi. Mr Mosoro deposed that Adolf Afasi’s story to him at that time was very good and that had he known of it earlier he would have called him as a defence witness. However, Mr Mosoro says that this evidence only became available to him about an hour before the judgment was delivered. Mr Mosoro says he did not make any application to re-open the defence case as he did not get full instructions from this witness.

THE LAW

Section 6

The application is made pursuant to s 6(1)(a) of the Supreme Court Act (Ch No 37) 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 so satisfied that the justice of the case warrants it . . .”

I consider that there are two pre-conditions about which the court has to be satisfied before any evidence is allowed to be adduced:

N2>(1)      the evidence sought to be adduced must be “fresh”; and

N2>(2)      where the court is so satisfied, that the justice of the case warrants it.

I make the further observation that, in my view, if the evidence is not “fresh evidence” in the accepted judicial interpretation, then that is the end of the matter, it cannot be adduced pursuant to this section of the Act. The second pre-condition, in my view, is only applicable when the evidence is “fresh”. Conversely, if the evidence is “fresh”, it will not necessarily be admitted unless the court is satisfied that the justice of the case warrants it.

What then are the tests for determining “fresh evidence” and “justice of the case”?

FRESH EVIDENCE

When is evidence “fresh evidence”? I consider that the Supreme Court, in a strong joint decision in John Peng v The State [1982] PNGLR 331, dealt comprehensively with the interpretation to be given to this expression under s 6 of the Supreme Court Act. The Court stated that as s 6 appears to have no counterpart elsewhere, the approach to its interpretation can be seen through the interpretation given to the equivalent of s 8 of the Act. The Court stated that, “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 (UK) where these words form part of s 7”, and referred to Johnson v Johnson [1899] UKLawRpPro 41; [1900] P 19, where the President (Sir F H Jeune) said (at 21):

“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 (UK). In R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408, Morris LJ said of these words (at 422-423):

“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 continued (at 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.”

The Supreme Court in John Peng’s case said (at 337) that:

“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.”

In John Peng’s case, the appellant appealed against his conviction on a charge of wilful murder, and the State had applied under s 6 to introduce fresh evidence — a statement made by the appellant to the investigating officer after the trial in which he named the murderer thus putting himself at the scene, contrary to his defence. The Court said (at 337):

“We are therefore of the 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.”

I am of the opinion, on the basis of the foregoing authorities, that “fresh evidence” referred to in s 6(1)(a) must be evidence that is “fresh” in the accepted judicial interpretation. It must relate to an event or an occurrence which took place since the trial, such as the making of the statement by the appellant in John Peng’s case, or that the evidence came to the knowledge of the party applying since the hearing or the trial and which could not by reasonable means have come to his knowledge before that time.

JUSTICE OF THE CASE

I repeat that this question as to whether the justice of the case would warrant the admission of the evidence only becomes necessary of consideration after it is established that the evidence is “fresh”. I consider that the factors to be then considered as to whether justice of the case warrants admission are:

N2>(a)      whether it is relevant to the issues;

N2>(b)      it must be evidence which is credible evidence in the sense that it is well capable of relief;

N2>(c)      after considering the evidence, the court will go on to consider whether there might have been a reasonable doubt in the mind of the court as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.

The rationale for these is that, even if the evidence is “fresh”, if it is not relevant, then quite obviously it would be pointless admitting it. If the evidence, though prima facie relevant, is not capable of belief, similarly, it would be pointless admitting it. The further proviso as to whether the justice of the case warrants admission is for the court to go on to consider whether there might have been a reasonable doubt in the mind of the trial court as to the guilt of the appellant if that evidence had been given together with the other evidence. If the court could not say that the trial court might have had a reasonable doubt as to the appellant’s guilt, then the justice of the case does not warrant its admission. If the evidence is simply going to be confirmatory of the appellant’s case but adds nothing further to it, then similarly, I do not consider that the justice of the case warrants its admission.

On the basis of these principles, counsel for the appellant/applicant conceded that the proposed evidence of the two prospective witnesses is not “fresh evidence”. I agree entirely. By no means whatever can the prospective evidence be said to be “fresh evidence”. Both witnesses were available for the defence to call prior to the completion of the trial. Adolf Afasi saw and gave preliminary instructions to defence counsel, Mr Mosoro, prior to the judgment being delivered. Presumably he instructed Mr Mosoro about what he deposes to in his affidavit. Indeed Mr Mosoro deposed that what Adolf Afasi told him at that time was very good. There was available to counsel the right to make application to re-open the defence case to call this evidence. It is not to the point, nor is it any justification, to suggest that because the trial judge was the Chief Justice that counsel might have been overawed. If it is simply because of counsel’s inadvertence or inexperience and incompetence, as I believe it was, how can that possibly make this evidence any more “fresh”? Whether it was “fresh evidence” is not dependent upon the nature of the proposed evidence nor is it dependent upon the subjective reasons of the prospective witness as to why he might not have told this story earlier. If the fact is that it was known and available to the party seeking to call it, as in this case, then that precludes it from being “fresh evidence”, and I consider it cannot be admitted.

I would adopt the statement of Latham CJ in Green v The King [1939] HCA 4; (1938) 61 CLR 167 at 175, as being entirely applicable to the circumstances of this case:

“If, for example, there being no elements of fraud, mistake or surprise an accused person has, by himself or by his legal advisers, deliberately decided to set up a particular defence, he cannot complain as of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence. Thus if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given.” (My emphasis.)

I adopt also Latham CJ’s cautions (at 175-176) wherein he said:

“These rules [relating to admission of fresh evidence] ... are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law are allowed to try again because they have chosen to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.” (My emphasis.)

I would also adopt the observations of Pratt J in James Neap v Independent State of Papua New Guinea (Supreme Court, No SC 228, 3 May 1982, unreported) as entirely applicable to the circumstances of this application:

“All the information which is now being sought to be adduced as fresh evidence was in existence and there for the asking before the time of taking of evidence on the commission and the trial. In all the circumstances, any compliance by this Court with the appellant’s request might well be construed as an invitation to the profession generally to slacken their efforts to mount a properly prepared case at the original hearing. I would not wish to encourage such a view because it was thought that a losing party could rely on obtaining a rehearing from the Supreme Court.”

Counsel for the appellant/applicant conceded that on the authority of the foregoing cases, the evidence proposed to be called is not “fresh evidence”. Counsel however sought to rely on the case of Busina Tabe v The State [1983] PNGLR 10 for the proposition that, although the evidence sought to be called is not fresh evidence, it is of such a nature that if it is received, serious doubts would be raised as to the correctness of the conviction or that it would show that a miscarriage of justice had taken place.

I am of the conclusion that, in the light of the construction I have given to s 6(1)(a) on the authorities I have referred to and in particular the earlier John Peng decision, Busina Tabe’s decision does not apply to this application. I consider that if the evidence is not “fresh evidence” then the issue of “justice of the case” does not arise for consideration.

For this reason I would refuse the application

SECTION 8

I have read the judgments in draft of my brothers Kapi Dep CJ and Los J and I have the misfortune to differ from them on the interpretation and application of s 8.

I adhere to the joint opinion of the court in John Peng v The State, that s 8 is “a machinery provision for the purpose, inter alia, of implementing the powers granted under s 6.” Section 6 grants the principal power to the Supreme Court as to the manner in which the right of appeal should be exercised. It provides that the appeal: “Shall be by way of rehearing on the evidence given in the court the decision of which is appealed against.”

It is to be noted that this limitation on the power of the Court on appeal is only “subject to the right of the Supreme Court to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and to draw inferences of fact”.

Section 8 is, in my view, notwithstanding all the common law precedents that relate to similar or equivalent English and Australian provisions, quite simply a supplemental provision, for the purposes of the Act generally. It is a general provision “for the purposes of this Act”. It cannot supersede a specific procedural head of power such as s 6. Section 6 is not made “subject to s 8” or “subject to this Act” or “subject to other provisions of this Act”. It is not drafted in the form one might expect a superior overriding provision to be, such as “notwithstanding this Act” or “notwithstanding s 6” or such similar expression.

To construe s 8 as a separate grant of power exceeding the limitations of s 6 would render it incongruous with the s 6 limitations. The two provisions would be quite incompatible; they would not be complimentary. They would be inconsistent with one another. For instance, I cannot consider it to be the intention of the legislature that all witnesses who have given evidence in the trial be permitted simply to repeat the same evidence all over again in the appeal. This must surely refer to a witness in the earlier trial who is now in possession of “fresh evidence” as judicially interpreted, and in any event, if the justice of the case warrants its admission. I cannot conceive it to have been the legislature’s intention that, while s 6 was intentionally and for good reasons limited, an all-inclusive separate head of power quite inconsistent with it should also be enacted.

Section 6 is quite obviously a unique provision, without counterpart in Australia and England. It must be presumed that Parliament enacted it with the full knowledge of the limitations spelled out in clear, precise terms. If the effect of s 8 is as contended for by my brothers, then s 6 becomes redundant and of no practical utility. If any evidence can be called, whether it be fresh or not fresh, provided that the Court thinks it necessary or expedient in the interests of justice to do so, then s 6 becomes redundant. The first limitation of s 6(1) that the “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,” does not apply under s 8. It is not a stipulation under s 8. If s 8 is not to be applied with regard to s 6 limitations, then it is to be the case that an appeal involving s 8 provisions is open to be a retrial with the right to call all witnesses who had given evidence in the original trial plus any other evidence, which need not be fresh, but provided the court “thinks it necessary or expedient in the interests of justice to do so”.

I am of the opinion that s 8(1)(b) is capable of being read as a supplementary machinery provision, inter alia, for the purposes of s 6, by the qualifying phrase “for the purposes of this Act”. Any persons who would have been compellable witnesses at the trial, whether or not they were called at the trial, in my view, can be called consistently with the restricted ambit of s 6. I consider that any such compellable person, means that such a person would be in possession of evidence which is “fresh evidence”. Indeed, as the law presently stands, even a person who had been a witness in the original trial can, under s 6, be called to give evidence, not of what he had testified to before, but limited to properly allowed “fresh evidence”. To allow witnesses who had already given evidence to simply repeat their earlier testimony is really re-trying the case. It surely would not have been the intention of the legislature to allow that.

For these reasons, despite the persuasive body of Australian and English authority, I consider that the primary source for interpreting the local statute are its terms. The statute must first be interpreted by its terms with a view to rendering the provisions consistent with each other, and secondly to give efficacy to the intentions of the municipal legislature before resorting to extraneous tools of construction.

I am of the opinion that s 8 is a machinery provision, for the purpose, inter alia, of implementing the powers granted under s 6. It is not a separate overriding grant of power in derogation of s 6.

Accepting the majority rulings as I am bound to, that s 8 is such a separate head of power enabling reception of any evidence, whether it be fresh or not, provided the Court thinks it necessary or expedient in the interests of justice to do so, I beg to differ again from the majority as to its application to the proposed evidence of the two prospective witnesses. I do not consider that the nature of the proposed evidence is akin to that in Busina Tabe v The State in content.

The basis for the admission into evidence of that evidence cannot be equated with the proposed evidence in this case. The evidence admitted in Busina Tabe’s case was that of a bank teller of the formal transaction that he had completed. The evidence was uncontroverted. That is quite clearly not the case in this application. The evidence sought to be called from the two witnesses is evidence going to the very issues which were contested in the trial before the Chief Justice. On an examination of the affidavit of the evidence of the two witnesses proposed to be called and the further affidavit of the witness Peter Ruagura which was taken for the committal proceedings and was available to counsel at the trial, it is not entirely consistent with the case for the appellant in the trial. Indeed on a careful perusal of the affidavits some proposed statements by the witnesses qualify or are inconsistent with some of the appellants sworn evidence in relation to what he said at the time of the incident.

I quote relevant parts from the proposed witness Peter Ruagura’s affidavit taken for the purposes of the committal proceedings:

“On Monday 4 April 1988 at about 2 am in the morning I was sleeping inside the church building. When I woke up I heard Teddy Abiari said ‘that you want to challenge me? I got my knives here’, and he did the action of taking the knives out of his pocket. When everybody who was sleeping inside the church building heard that and tried to run away but Teddy Abiari told them ‘that if you run away I will stab one of you with the knife’ so everybody just remained sleeping. When I heard his voice, I realized that it was Teddy Abiari, and the same time Agnes Asigabi called me to help her and talk to Teddy Abiari and bring him outside. I heard this so thought Teddy Abiari is my uncle and I can talk with him and he can listen to me to go outside. Teddy Abiari was drunk and when I talked to him he told me that you are the Pastor of Gospel and I won’t listen to you. Teddy Abiari told me that and he wants to hit me with a piece of brick which he was holding. Teddy Abiari asked Agnes Asigabi to come with him to go and see Premier, Mr Andrew Ariako. Agnes Asigabi told Teddy Abiari that it is overnight and I must wake up my husband to accompany me. Teddy Abiari then told Agnes that he will kill her husband and at that time Teddy was trying to hit Agnes with a piece of brick but Agnes’ husband got up and hid himself with other people. Agnes Asigabi then called me so I went and held Teddy’s hand but Teddy tried to hit me with the piece of brick but I blocked his hands with the piece of brick. I then took the piece of brick from Teddy’s hand but he took it from me. Anthony Duba then saw me and came into the church building and told me that he is drunk and has a stone in his hand so both of us must be easy on him outside. At that time, men, women and children when Anthony Duba held Teddy Abiari and brought him outside the church building. When they left, I cooled down everybody and told them to go to sleep again. I was in their body so I was looking for my singlet at the church building and I heard the noise from the tent belonging to Warames.” (My emphasis.)

In his affidavit sworn 10 May 1989 in par 4 he said:

“I endorse what I said in my affidavit to the police, but I say I am not an uncle to Teddy Abiari but a distant cousin to him, which should be properly written in paragraph 3 of that affidavit.

Furthermore, I did mention to the police that when Teddy Abiari put his hands in his pocket, something fell down which we later found to be a purse. That should have been added to paragraph 2 of my affidavit.”

Now let us contrast this proposed evidence to be from this witness’ affidavits with what the appellant said in his evidence in chief and cross-examination in relation to these aspects of the evidence. At p 49 of the transcript of evidence in his evidence in chief, the appellant said this:

“I went to the church building and I spoke to Agnes. I told her I wanted to take her out as I didn’t want her to stay in the camp. But she refused. I wasn’t too happy. She was supported by other members of the congregation who requested I should leave. Some members of the congregation wanted to move me out physically. In self-defence, I grabbed a piece of brick and threatened by swinging the brick at them. At that time, Peter Ruagura came out from the crowd in the church and Anthony Duba appeared from the outside and attempted to escort me out of the church. In the process of so doing he grabbed the brick from my hand. I was escorted out of the church onto the lawn. Peter Ruagura went back to the church. Anthony Duba and I were going out of the camp. And we were not quite out of the camp when I heard somebody shout, ‘Yu pekpek man, yu ting yu man bilong fait, yu kam bek gen’, or words to that effect. I was provoked when I heard those words. So I went back to see who shouted those words. Anthony Duba and I had a bit of struggle. I freed myself from Anthony Duba and I was on my way towards the crowd with Anthony Duba trailing behind me. On nearing the crowd, we heard a bombarding of objects, bricks, sticks etc. I was very badly hurt during the commotion.”

In the last question and answer (at p 50):

N2>“Q.     Did you say, ‘Who wants to challenge me? Anyone who challenges me, I’ll kill him, I have two knives’.

N2>A.       I never said that.”

He was asked this question (at p 51):

N2>“Q.     Referred to your Record of Interview to Question 22. What do you say about it?

N2>A.       I didn’t threaten anybody in the camp; only in the church.”

Question 22 in the Record of Interview referred to is as follows:

“I have received some information that you threatened the people in the camp with a brick when you first entered that camp, what have you got to say about this?”

The appellant answered this question, “That’s not true”. In the last question and answer he was asked (at p 51):

N2>“Q.     That night there is allegation that you held this person on the neck with your left hand, stabbed him on the head with a knife?

N2>A.       It is not true. During that night I never had any physical contact with any members of the crowd outside the lawn, in particular the deceased.”

The following series of questions and answers took place (at p 52):

N2>“Q.     Did you carry sharp objects?

N2>A.       I never had in my possession any sharp object.

N2>Q.       Did you carry any knives?

N2>A.       No.

N2>Q.       One knife?

N2>A.       No.

N2>Q.       Did you also say ‘Ha God, has come, kneel down and pray?’

N2>A.       No I didn’t. That was a lie.”

The following questions and answers are recorded (at p 53):

N2>“Q.     Your observation of tent?

N2>A.       One occupied by Warames, sides dropped down to the ground and front back opens?

N2>Q.       How could you tell?

N2>A.       It was moonlight and I could see. Cover was blue so it stood out.

N2>Q.       There is evidence you acted as to drunk.

N2>A.       I was not drunk. I was sober although I had a few beers.”

The appellant was asked (at p 57):

N2>“Q.     While you were in Church building you were shouting and disturbing the people?

N2>A.       I went there but I didn’t disturb people. I spoke to my cousin sister and told her to come out. I walked to where she was sleeping and woke her up and told her to go out as she was not supposed to be there. She refused.”

The following questions and answers are recorded (at p 58):

N2>“Q.     You asked her husband?

N2>A.       No, I didn’t hear her ask her husband. She refused. That angered other members of the Congregation. They threatened to throw me out physically.

N2>Q.       I suggest you were cross she converted to Four Square Gospel Church.

N2>A.       I wasn’t very furious. She refused, others supported her. They threatened to throw me out. I grabbed brick and threatened to throw it at them.

N2>Q.       What made you pick up brick?

N2>A.       I saw then approached unarmed.”

The following questions and answers are recorded (at p 59):

N2>“Q.     When you were in the Church building the second time you said, ‘Who wants to challenge me? I will kill him. I have two knives’?

N2>A.       I didn’t go into the Church second time and I didn’t say those words.”

The following questions and answers are recorded (at p 60):

N2>“Q.     When you heard that you said, ‘Who wants to challenge me?

N2>A.       That’s not what I said.

N2>Q.       When you broke free from Anthony you ran straight to Pastor John Togori.

N2>A.       I didn’t. I didn’t see the Pastor. I didn’t come into physical contact with anybody that night.”

The proposed witness Adolf Afasi’s affidavit of 10 May 1989 contains the following deposition (in par 6):

“I then heard Teddy Abiari called out from the vehicle, ‘Are you looking for a God?’“

The appellant in his evidence in chief, at p 72, was asked:

N2>“Q.     Did you also say, ‘Ha, God has come, kneel down and pray?

N2>A.       No, I didn’t. That was a lie.”

And in cross-examination he was asked (at p 56):

N2>“Q.     When you came close to the camping area because you were cross your cousin being there you went into the camp and disturbed the people in the camp by calling out words to the effect ‘I am God, kneel down and pray for me’?

N2>A.       I did not say those words. I went not to disturb them but to get cousin sister. She was married at the time.”

Now I have quoted large portions of the proposed evidence to be from the two witnesses’ affidavits and the appellant’s evidence in the trial in relation to specific allegations as to what the appellant allegedly said and did.

It has become abundantly clear that by the examination of the proposed evidence of Peter Ruagura and Adolf Afasi relating to what the appellant allegedly said about use of knives, about his state of sobriety, about the circumstances in which he held the brick, what he allegedly said to his cousin Agnes, and what allegedly transpired between him, Peter Ruagura and Anthony Duba and upon an examination of the appellant’s evidence in relation to these circumstantial matters, that rather than supporting and rendering consistency with the appellant’s accounts of the events of that night, they contradict him. The effect in my view is that rather than strengthening the credibility of the appellant and impugning that of the state witnesses, the proposed evidence of the witnesses, Peter Ruagura and Adolf Afasi would seem to me to qualify and impugn the credibility and veracity of the appellant’s evidence in relation to the total circumstances of the events that evening.

In all of the circumstances therefore upon a total examination of the evidence to be called I do not consider that the principles of law have been satisfied.

For instance I cannot be satisfied after considering the evidence of Peter Ruagura and Adolf Afasi together with the evidence of the appellant in relation to the matters touched upon, that there might have been a reasonable doubt in the mind of the trial judge as to the guilt of the appellant if this evidence had been given together with the other evidence at the trial. I rather think that if these two proposed witnesses gave evidence precisely as they depose to in their respective affidavits and in Peter Ruagura’s case also as contained in his affidavit sworn for the committal proceedings, then I think the appellant’s evidence and defence would have been weakened considerably.

There is additionally an allegation in Adolf Afasi’s affidavit of 10 May 1989 that a state witness, one Raphael Ruaf was not camping with the others in the main camp. He is said to have been staying at Society Camp with other Congregation members as the Church building and the other tents were full. The Society Camp is some distance away from the main camp. It is about 15 minutes walking distance. It is said that Raphael Ruaf stayed there on Friday, Saturday and also Sunday nights and that he was not seen at all on the night of the trouble. I do not consider that this allegation necessarily takes the matter any further. If these proposed witnesses for the appellant contend that it was dark, it does not necessarily follow then they would have seen everybody who was present that night. Furthermore, the fact that this is asserted does not necessarily establish the truth of the matter. It simply goes together with the evidence for the defence to be weighed up by the trial judge together with all the other evidence. Often witnesses for one side or the other allege that one witness or another of the opposing side was not at the scene and what he or she is saying is not true. This is not uncommon and in the final analysis the trial judge has to weigh up all of these evidence for and against and make findings of facts. This assertion does not, in my view, determine the matter conclusively one way or another that this witness, Raphael Ruaf, was not in fact present at the time.

Additionally the evidence proposed to be led from witness Adolf Afasi as to an alleged conspiracy between Church members and the witnesses to give false evidence I do not consider qualifies nor affects what I have said.

In the end result I do not consider that this proposed evidence would cause reasonable doubts in the minds of the tribunal of fact as to the guilt of the appellant. I do not consider therefore that this evidence should be admitted.

I would therefore dismiss the application to call further evidence.

LOS J: This appeal arises from the decision of the National Court given at Madang on 20 April 1989. The appellant was convicted of murder and was sentenced to eight years imprisonment with hard labour. Before the hearing of the appeal on 2 March 1990 the appellant sought through his counsel to do two things. First, he sought leave to amend and add further grounds of appeal. This was granted. Secondly, he sought to call fresh evidence to support the amended grounds of appeal. The arguments on the second application were taken and the court reserved its decision on that application.

The appellant derives his power to apply to this Court to allow fresh evidence under s 6(1)(a) of the Supreme Court Act (Ch No 37) as well as the supplementary powers in s 8(1).

N2>“6(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; ...”

The appellant has taken up his argument on two levels. On the first, he has sought to satisfy the settled principles of allowing fresh evidence. On the second, which was in the alternative, it was argued that even if the requirements under the settled principles were not satisfied, if the evidence sought to be admitted impinged upon the credit of the trial witnesses which if accepted were capable of raising doubt in the mind of the trial judge of the guilt, the evidence should be allowed in although technically, that evidence might not be fresh evidence.

It has been settled that

“ ‘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.” John Peng v The State [1982] PNGLR 331

There are other Supreme Court decisions on fresh evidence, like Straits Contracting (PNG) Pty Ltd v Branfill Investments Ltd [1988] PNGLR 239. But I think McDermott J in Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 272 at 276 listed with clarity most of the matters that are relevant when the courts are considering whether or not fresh evidence may be admitted:

“I have come to the conclusion that the application to reopen the plaintiff’s case to admit fresh evidence fails to meet the following tests:

(1)      that it would, if believed, probably affect the result;

(2)      that it could not with reasonable diligence have been adduced before;

(3)      that it is not merely confirmation of the plaintiff’s case;

(4)      that it was not omitted by inadvertence;

(5)      that it was not omitted by deliberate election;

(6)      that it is in the interests of justice to admit it.”

The obvious exclusion of one of the most relevant considerations from the list is the consideration that fresh evidence must be admissible according to rules of evidence.

The evidence sought to be adduced at the hearing of the appeal is in the form of four affidavits.

(1) Affidavit of Peter Ruagura

In summary he says he told the police he would be in his village but they did not come to get him to give evidence at the trial. He says he was at Easter Camp where a pastor was injured and died later. He did not see the pastor earlier that night because it was very dark, but saw him later when the light came on. He says the State witness, Raphael Ruaf, was not at that particular camp that night. He also says that he told the police when the appellant put his hands in his pocket, something fell down, it was found to be a purse.

(2) Affidavit of Adolf Afasi sworn on 10 May 1989

In summary he says for some reason he was not asked to give evidence. He was in town on the day of hearing. When he was questioned by the police during the investigations he told them he did not see the appellant hold a knife. He told the police that the appellant came to get his cousin, Agnes Asigabi, who was at the camp. But a relative prevented him from getting her thereby causing an argument and scuffles. The appellant got a piece of brick and threatened to throw it into the church. He was then removed. As the appellant was going to the road someone called “Remove the drunkards; he thinks he can fight”. Thereupon the appellant rushed back. He was, however, met by the people at the camp with sticks, planks, and many other objects. He was badly beaten up. He says he did not see the pastor there because it was dark. The generator was put on at the time of the commotion when the appellant and one other person were being chased out of the camp. He also says the police witness, Raphael Ruaf, was not camping with them in the main camp. Further, he says, he is not related either to the appellant or the pastor, though he was angry with the appellant and his friend for going to the camp.

(3) Affidavit of Michael Mosoro sworn 21 June 1989

Mr Mosoro was counsel for the appellant at the trial. He says Adolf Afasi saw him about an hour before the judgment of the National Court. The content of what Adolf Afasi had told him was good but as it was late he could not apply to reopen the defence case. After the case he saw Adolf Afasi and also Peter Ruagura. Had he known the availability of the two men and their statements he would have certainly called both as defence witnesses.

(4) Second affidavit of Adolf Afasi sworn 2 June 1989

In addition to what he has said in his affidavit of 10 May 1989, he says that after the fight he and all other members of the church got together and conspired to tell the police that they had seen the appellant hold a knife and stab the pastor even if they had not seen one. The reason was that they were unhappy and wanted to punish the appellant for disrupting their religious camp. The appellant belonged to a different religious denomination with which they had conflicts. He repeats that police witness, Raphael Ruaf, was not at the camp where the incident had occurred; he was at a different camp some kilometres away. He says he was persistently told to say he saw the appellant hold a knife and stab the pastor. He refused as he could not tell a lie.

There is background information, though small, against which the appellant’s application to adduce fresh evidence must be considered. According to Mr Soi, the appellant’s case was a special fixture. There ought not to have been any surprises if the defence had its case well planned.

Peter Ruagura and Adolf Afasi had both given statements to the police and these were taken down in writing. Obviously the State counsel did not call them because their evidence would not be of any help to the State case. Although one inference of their exclusion could be that they were of no use to anybody, the other inference would have been that their evidence would have been more help to the defence. Defence counsel should have interviewed them because as a matter of course, copies of their statements should have been included in the committal papers which would have been served upon the appellant as of right. Further the appellant’s counsel had a fair “warning” by Adolf Afasi before the judgment. I appreciate that thought of applying to the Chief Justice of Papua New Guinea to reopen the defence case one hour before delivering judgment, might have been too much to bear. At least if counsel had tried and his application had been rejected, he would now have a stronger case in his application to adduce fresh evidence.

I conclude that the evidence to the extent that stabbing might have occurred in the darkness, to the extent that the appellant might not have gone within the reach of the pastor, and to the extent that the appellant might not have had a knife in his hand is not fresh evidence. It would have been discovered and adduced with due diligence. In relation to Adolf Afasi, counsel had deliberately elected not to apply to reopen the defence case. In relation to the latter, in fairness to defence counsel, I do not here say that he had sufficient time to consider the pros and cons before making a deliberate decision against doing so. What I say is more of a description of the course he had taken.

However I query whether what Adolf Afasi says in par 2 of his affidavit of 2 June 1989 cannot be fresh evidence. He says:

“After the fight involving the appellant, but before the deceased died, we, the church members who camped there at the scene, got together and conspired to tell the police CID man, when they arrive to interview us as witnesses, that we saw the appellant held (sic) a knife and stab the pastor with it, even if we didn’t see one.”

He is making a bold statement. He is alleging crime. Like everybody who was at the camp, and indeed anybody else put in that kind of a situation, he was upset. Whether the appellant did the stabbing or not, the fact that someone like the appellant, drunk and coming to a religious camp at odd hours with no respect at all to the believers and the pastor was a serious thing indeed. He must be punished therefore. It was in this aura, excitement or atmosphere they agreed, conspired or “pasim tok” to get the appellant, come what may. I consider in these circumstances, either counsel would not have discovered this evidence even with due diligence. I consider this evidence is akin to confession as in R v Robinson [1917] 2 KB 108 or a subsequent admission that false evidence had been given as in R v Thomas (1959) 43 Cr App R 210 or where one co-defendant saying subsequent to a conviction that the other had nothing to do with the crime, as in R v Williams [1964] Crim LR 90. And I consider this kind of evidence is not discoverable until there is a change of heart for some reason which, in my view, would include guilt feelings or a real appreciation of the extent of the punishment imposed on a person as a result of false or exaggerated evidence. However, the evidence on the alleged conspiracy ceased to qualify as fresh evidence when Mr Mosoro was informed of the nature of the evidence that had not been called. He elected not to apply to reopen the case.

The next argument of the appellant’s counsel is that should the court find that evidence sought to be called before the Supreme Court is not fresh evidence as such, the court should nevertheless permit the evidence to be called on the basis that the nature of the evidence is such that conviction could have been wrong. Such evidence includes the evidence attacking the credit of the State witnesses.

As to the form of arguments, I do not necessarily think that the question of the nature of the evidence should be argued as an alternative argument on the fresh evidence rule; it would be neater if they could be separated. But the main issue that has waivered in my mind is whether, once it is established that the evidence sought to be adduced is not fresh in the technical sense, that is the end of the matter; other considerations are irrelevant. Certainly, s 6 of the Supreme Court Act with its definition of “fresh evidence” given to it by the case law both within and without the jurisdiction would seem to support the view that once it is determined that new evidence fails the test of being fresh evidence, that is the end of the matter. The court cannot proceed to consider other factors. This view was taken by McDermott J in Busina Tabe v The State [1983] PNGLR 10 at 16:

“In my opinion, the new evidence is not encompassed by this summary, whilst it appears relevant, credible, admissible and causes a doubt, it is just not ‘fresh’.”

The summary referred to is the rule of fresh evidence in John Peng v The State, at 337:

“If a party can show, that the evidence is ‘fresh’ in the accepted judicial interpretation; that 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.”

I consider such a view without any qualification would be contrary to common sense and has potential to cause injustices. Busina Tabe’s case has created an exception.

In that case as a matter of fact it was proven that both prosecution and defence counsel knew of the existence of the evidence at the time of the trial. So the evidence was not fresh at all. However the Supreme Court allowed the evidence and ordered a new trial. I think McDermott J summarised the Court’s view (at 17):

“... The entire conduct of the case has left a man convicted of theft of a particular amount on a particular day. A serious doubt has been raised on both these findings. This doubt has been raised by ‘fresh’ evidence, and I use that term advisedly.”

Kaputin J and McDermott J criticised both counsel for the conduct of the case on trial. Kaputin J thought the conduct of both counsel was capable of constituting professional misconduct whilst McDermott J mildly described the counsel as by “no means senior”.

It is my view that the exception created in Busina Tabe’s case is not limited to where both counsel are aware of the existence of the evidence at the time of trial. That fact only goes to show whether or not the evidence sought to be adduced before the Supreme Court is fresh. In my respectful view, Busina Tabe’s case stands for the following principle: that evidence, though not fresh in the accepted judicial interpretation and apart from qualifying under other tests, if it raises doubt on the findings or decisions of a trial judge, must be allowed. I would also add, not as a separate principle but as part of the same principle, that where the new evidence shows that miscarriage of justice has been caused or may have been caused, then that evidence must be allowed by the Supreme Court to be adduced.

I am not unmindful of the important principles of public policy against opening a flood gate as it were if the rules of fresh evidence were given too much flexibility. Both John Peng’s case and Busina Tabe’s case raise the warnings fairly well. At p 617 of Busina Tabe’s case, a caution by Latham CJ in Green v The King [1939] HCA 4; (1938) 61 CLR 167 at 175 is cited:

“These rules [relating to admission of fresh evidence] ... are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.”

In the more recent case of Sutcliffe v Pressdram Ltd [1990] 2 WLR 271 at 283-284; 1 All ER 269 at 279, after discussing the court’s power to admit fresh evidence, Lord Donaldson MR said:

“It is a power which is sparingly exercised, because of the public interest in achieving finality in litigation. When an appellant applies for leave to adduce such evidence on the hearing of the appeal, the court has necessarily to consider the evidence which is tendered before deciding whether it meets the conditions which render it admissible. These, generally known as the Ladd v Marshall conditions (see [1954] EWCA Civ 1; [1954] 1 WLR 1489; [1954] 3 All ER 745), are as follows; (1) that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) that the evidence is such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and (3) it is such as is presumably to be believed, that it is apparently credible, although it need not be incontrovertible.”

Earlier in R v Home Secretary; Ex parte Momin Ali [1984] 1 WLR 663 at 670, Donaldson MR referred to the caution in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489; 3 All ER 745, in the context of application for judicial review:

“... so I think that the decision in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489 has, as such, no place in that context. However I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable, subject always to the discretion of the court to depart from them if the wider interests of justice so require.”

It is my view that s 8 of the Supreme Court Act suggests other evidence not necessarily fresh evidence may be taken if the Court “thinks it necessary or expedient in the interests of justice to do so”. I note in John Peng’s case (at 337) it is said that s 8 provides machinery for implementing the powers granted under s 6. I think that is true only to an extent. A closer reading of the sections indicate to me that each section grants independent discretionary powers: the powers under s 8 are not necessarily limited to receiving the evidence qualified under s 6 as fresh evidence. The qualification for allowing evidence under s 6 is where the court “is satisfied that the justice of a case warrants it”; the qualification for allowing evidence under s 8 is where the court “thinks it necessary or expedient in the interests of justice to do so”.

That there is discretionary power to accept evidence which is not necessarily fresh has support in the cases outside this jurisdiction, for example, an Australian case cited in John Peng’s case, at 337. It is Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510. In this case Barwick CJ (at 520) said:

“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.”

Then there is the rider put upon fresh evidence rule by Donaldson MR in R v Home Secretary; Ex parte Momin Ali, that:

“... there must be finality in litigation ... subject always to the discretion of the court to depart from them if the wider interests of justice so require.” (My emphasis.)

Inherent in Papua New Guinea cases there is support for this view. In Busina Tabe’s case, although McDermott J expressed very strong views (at 16) against receiving evidence which is not technically qualified as fresh evidence but qualified under other considerations (which I quoted earlier), be concluded (at 18) that the evidence should be admitted:

“Nevertheless, the tenor of the authorities and legislation Supreme Court Act ss 6 and 28 and the Constitution s 158(2), in my opinion allow for reception of the fresh evidence in this particular instance.”

The final view of the Supreme Court in that case is aptly stated in the headnote:

“Evidence sought to be admitted on an appeal was not fresh evidence within the meaning of s 6(1)(a) but was in existence at the time of trial and was known to and available to both the prosecutor and the defence but was (without explanation) not used by either; the nature of the evidence was such that a serious doubt was raised.”

I consider and so conclude that the Supreme Court may still admit evidence which is not fresh evidence as such but qualified under other wider considerations with a view to determining truth and achieving justice.

Now, having established that, I proceed to consider the nature of the evidence. Had Adolf Afasi and Peter Ruagura been called to give evidence and if their evidence was believed it would have made Raphael Ruaf a liar. He was not at the camp, he was far away. Specifically, the court might have doubted whether the appellant had a knife, whether the pastor was injured after the generator was started so that anybody could have seen the stabbing. At its worst, Raphael Ruaf could have been found to have conspired to tell lies. If that was the case other State witnesses’ evidence would have been suspect. Especially the evidence of Pius Ivara who had been sworn to say he was with Raphael Ruaf near the pastor. Also the evidence of witness Bernard Sakor who had sworn to say Raphael Ruaf was with him in the same tent. These two witnesses gave similar evidence to that of Raphael Ruaf’s evidence, though Bernard Sakor’s evidence fell short of describing any knife or the knife being used.

The accused had decided to give evidence. On the face of the affidavits of Peter Ruagura and Adolf Afasi, there appear to be some inconsistencies between his evidence and what Peter Ruagura and Adolf Afasi say. But the inconsistencies do not relate to the use of a knife and acts of stabbing.

At any rate the evidence in the affidavits are not being viewed to determine the merit of the grounds of appeal. The Court is asked to have a general view of what might be called. Counsel for the State has indicated that the deponents of the affidavits must be called and examined. I would agree with taking this course because only in this way can the truth or otherwise of the claim of conspiracy be determined. I would allow the new evidence taken at the appeal subject to examination of the deponents.

Application to hear evidence granted

Lawyers for the appellant: Mionzing & Associates, Lawyers.

Lawyer for the respondent: Public Prosecutor.