Boateng v The State [1990] PGSC 7; [1990] PNGLR 342 (7 August 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 342 - Kwame Okyere Boateng v The State 

[1990] PNGLR 342

SC391

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BOATENG

V

THE STATE

Waigani

Kidu CJ Amet Hinchliffe JJ

27 July 1990

7 August 1990

COURTS AND JUDGES - Judges - Appearance of fair trial - Wife of judge attending court - Association with prosecutrix in rape trial - Miscarriage of justice.

CRIMINAL LAW - New trial - Miscarriage of justice - Fair trial - Test for - Appearance that trial not fair - Wife of judge associating with prosecutrix in rape trial - New trial ordered.

Held

N1>(1)      The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible.

R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490, followed.

N1>(2)      The presence of the trial judge’s wife in court during a rape trial and her associating with the prosecutrix within the precincts of the court gave rise to such a reasonable suspicion and a new trial should be ordered.

Cases Cited

R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490.

Appeal

This was an appeal against conviction for rape.

Counsel

E Kariko, for the appellant.

V Noka, for the State.

Cur adv vult

7 August 1990

KIDU CJ AMET HINCHLIFFE JJ: After a 15 day trial in Rabaul, which took place during August, September and October 1989, the appellant was convicted of the crime of rape and, on 5 October 1989, he was sentenced to imprisonment with hard labour for five years. His appeal is both against conviction and sentence.

One of the appeal grounds reads as follows:

N2>“3.2    The trial judge ought to have disqualified himself from presiding over the trial as it appeared that his Honour’s wife was a friend of the prosecutrix.”

During February 1988 the appellant met the prosecutrix at a sports clinic at Malaguna Technical College, Rabaul. They became friends and the relationship developed into a boy/girl relationship. On 18 February 1989, they had sexual intercourse at the appellant’s house and again, on 22 April 1989, at the same place. It is the second instance out of which a charge of rape arose and of which the appellant was convicted and sentenced to five years imprisonment in hard labour.

The said ground of appeal is inappropriately worded as, during the submissions, Mr Kariko (counsel for the appellant) really argued that it was the appearance that justice might have miscarried rather than bias on the part of the learned trial judge that was in issue. What was submitted was that the association of the trial judge’s wife with the prosecutrix during the trial could induce a reasonable person to think that justice could have miscarried in this case. Put another way, justice could have been seen not to be done.

The trial judge’s wife attended the hearing. From her evidence it appears that she started attending towards the end of the State case. She says in her affidavit (at par 4):

“I recall that at the time when I first attended the trial had already started and it would have been into its second or third week because the week following which I first attended, the defence began its case.”

She was noticed by the State Prosecutor (Ms Maunsell), Mr Tamusio, Mr Gendua (defence counsel for the appellant), Mr Maxwell Putty (of the Works Department) and Cecilia Franciscus. These people, except for Ms Maunsell, all filed affidavits.

Mr Putty says in his affidavit:

N2>“5.      While working at the court house I became aware of Mr Justice Konilio who presided over the case. I also learnt then that a lady who normally came around to the court house was the presiding judge’s wife.

N2>6.       As I recall, most of the time I saw the judge’s wife sitting at the back of the court room with a policewoman who I knew as Cecilia Madana and the woman, a Catholic nun that was said to be raped by Kwame.

N2>7.       Sometimes I saw them (the judge’s wife, Constable Cecilia Madana and the nun) talking and smiling or laughing outside the court room when the case was adjourned or before the case started.”

The following appears from other affidavits:

Affidavit of Mr Gabriel Gendua

N2>“6.      Her regular appearances made the State Prosecutor, Ms Susan Maunsell wonder who she was — whether she was a relative of the prosecutrix. Ms Maunsell therefore asked me one afternoon while waiting for the Court to resume about that lady. I told her I did not know who she was.

N2>7.       Ms Maunsell told me the lady could be the judge’s wife because she had seen her (the lady) at the judge’s chamber. The next day Ms Maunsell told me in court that she had found out the lady was the judge’s wife.

N2>8.       It was then that I first learnt that the lady was the judge’s wife. I recall vividly that she sometimes came into court wearing a pink long pair of shorts reaching the knee level and sat in court listening to the evidence given by witnesses.

N2>9.       I also recall vividly seeing her walking out of the court room together with the prosecutrix and the investigating officer, Policewoman Constable Cecilia Madana on numerous occasions whenever the court adjourned and would stand together and talk away.

N2>10.     Sometimes, after she attended the case, I saw her being driven away with Mr Justice Konilio in his Honour’s official car and I then knew very well that she was the judge’s wife.”

Affidavit of Thomas Tamusio

N2>“3.      The time I was engaged in Grade Five (5) matters, in the Rabaul District Court.

N2>4.       At times I called in and observed the proceedings in Kwame’s trial.

N2>5.       On more than one occasion I saw the trial judge’s wife sitting next to the prosecutrix and the CID officer, Mrs Madana at the back (gallery). At that time I never knew that she was the trial judge’s wife.

N2>6.       I even saw them talking outside during adjournments. Later in October 1989 whilst in Kimbe attending to the National Court Circuit with Mr Justice Konilio, did I confirm the lady to be the judge’s wife. This was after the Kwame’s case.”

In a report pursuant to O 8, r 24 of the Supreme Court Rules the trial judge said, inter alia, as follows:

N2>“19.    I did not at any stage before I convicted the appellant and sentenced him discuss any aspect of the case of The State v Kwame Okyere Boateng with my wife, Rita.

N2>20.     I was not aware that my wife in any way knew the Prosecutrix or that she had any relationship with her before or during the trial.

N2>21.     I am aware that my wife attended several times during the trial of the appellant and so did a lot of other members of the public.

N2>22.     This particular case attracted some attention in Rabaul partly I think because of the fact that the Prosecutrix was a nun.

N2>23.     I was not aware during the trial that my wife had spoken to the Prosecutrix during the trial and she did not inform me during the trial that she had.

N2>24.     Sometime after I had convicted the appellant and sentenced him and also I understand after the Notice of Appeal had been lodged my wife informed me that she had been approached by the State Prosecutor who had prosecuted the appellant Ms Susan Maunsell who had inquired of her whether she knew the Prosecutrix because it was being alleged in the Notice of Appeal that I was biased in coming to my decision in the trial because she (my wife) was a friend of the Prosecutrix.

N2>25.     My wife further informed me that she had told the State Prosecutor that she did not know the Prosecutrix before she came and attended the appellant’s trial, that at one of the adjournments during the trial she had spoken to the Prosecutrix, that when she spoke to the Prosecutrix she learnt that she had taught for three years at Lemakot Vocational Centre, in Lemakot village in New Ireland where my wife comes from and that she (the Prosecutrix) knew the names of some members of her family in the village and she had inquired about them.

It was at this stage when my wife informed me about what had transpired between her and the State Prosecutor that I became aware that my wife came to know the Prosecutrix during the trial.”

On 20 July 1990, the learned trial judge’s wife stated in her affidavit:

N2>“5.      I recall that on all occasions I attended Policewoman Constable Cecilia Madana was also at the court house. I soon came to learn that she investigated the case. I would have spoken to her on some of those occasions I attended but it would not have been about the case or her work on the case. I have known her family since about 1985.

N2>6.       With Constable Madana all the time that I saw her was the woman whom I soon came to know as Margaret.

N2>7.       I soon came to learn that she was supposed to be the victim of the trouble that the court was hearing.

N2>8.       I did not know her until that time but I soon came to realise that she knew me and in fact members of my family at Lemakot Village in New Ireland Province where I came from. I soon learnt from her that she had taught at Lemakot Vocational Centre for three years and she was able to tell me the names of members of my family and asking how they were.

N2>9.       I recall that on all the times I attended there were lots of other people.

N2>10.     I attended the hearing of this case because I was simply interested in hearing. Further there was nothing to stop me from attending because I had the time to attend.

N2>11.     I recall that before I attended at the very first time I did indicate to Mr Justice Konilio that I wanted to attend and I queried if my attendance would cause any problems. Mr Justice Konilio did not consider that there would be any problems so I went the first time and attended on a number of other occasion whenever time permitted me to do so.

N2>12.     Since the appointment of Mr Justice Konilio to the bench as a judge it has become an unwritten rule in my home that all matters pertaining to the court or the cases that are before the court are not talked about. All this time I have always found out about cases he presides in from the newspapers when they are reported.

N2>13.     If it is suggested that as a result of my attending court I would have discussed the case of Kwame with the Judge, I say that at no stage ever did I discuss Kwame’s case with the judge or with any other person at my home.

N2>14.     Further I categorically deny at any time discussing with Mr Justice Konilio the person of Margaret Soale, the fact that she knew me, that she knew members of my family at Lemakot when the trial was in progress and before the verdict was given.”

We have set out the pertinent parts of the affidavit evidence in order to show the background and the factual basis of the relevant ground of appeal.

There is no suggestion of bias on the part of the learned trial judge and none was urged during the hearing by Mr Kariko. Also there is no question of the propriety of his Honour’s conduct of the trial.

It is also not suggested that the trial judge’s wife discussed the case with him. We reiterate the point that what we are concerned with here is the upholding of the principles that not only must justice be done but it must be seen to be done.

The trial judge’s wife has the right to attend any court and observe proceedings. But it is also to be observed that her association with parties or witnesses in a case might raise questions if she attends and sits in court or talks outside court with witnesses or parties. Whether or not a judge’s wife actually influences the outcome of the case is important but it is not the point here. The point here is the reaction of a reasonable man or woman knowing the relevant facts that justice might have miscarried because of such association in or in the precincts of the court.

Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case.

In the National Court, all trials, civil and criminal, are entertained by judges sitting alone. It is therefore crucial to a fair trial and the actual appearance of a fair trial that spouses of judges not be seen in court or within the precincts of court associating with witnesses or parties in cases being tried by their husbands or wives.

What was said in R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123; [1983] 1 All ER 490 at 494 is pertinent to this case:

“Would a ‘reasonable and fair-minded person sitting in a court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the appellant ‘was not possible’?”

It is our view that such a person knowing what we know from reading the affidavits of Messrs Gendua, Putty and Tamusio would have a reasonable suspicion that justice had miscarried in this case. In saying this we repeat what we have said already that there was no actual bias shown in the conduct of the trial by the learned trial judge.

In order to ensure that justice is seen to be done we exercise the power given to this Court by s 155(4) of the Constitution, allow the appeal and quash the conviction and sentence. We order that a new trial be conducted.

We further order that the Registrar list the matter in the next call-over list at Rabaul.

Appeal allowed

Conviction quashed

New trial ordered

Lawyer for the appellant: Public Solicitor.

Lawyer for the State: Public Prosecutor.