Kuri v The State (No 2) [1991] PGSC 3; SC414 (23 August 1991)

Unreported Supreme Court Decisions

SC414

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 7 OF 1987
MAI KURI
V
THE STATE (NO. 2)

Waigani

Kidu CJ Hinchliffe Sheehan Brown Jalina JJ
17 December 1990
21 December 1990
23 August 1991

CRIMINAL LAW - Appeal - Fresh Evidence - Supreme Court Act (Ch 37), Section 61.

APPEAL - Supplemental Powers of the Supreme Court - Supreme Court Act (Ch 37), Section 8.

Held

Section 8 is a machinery provision for the purpose, inter alia, of implementing powers granted under Section 6.

Cases Cited

John Peng v The State [1982] PNGLR 331.

Ted Abiari v The State (1990) Unreported Judgement SC 389.

Busina Tabe v The State [1983] PNGLR 10.

Legislation Cited

Supreme Court Act (Ch 37)

Appeal

This was an appeal against conviction in which the appellant sought to adduce new evidence under Section 8 of the Supreme Court Act.

Counsel

P K Kunai for the Appellant

S Soi for the State

KIDU CJ HINCHLIFFE SHEEHAN BROWN JALINA JJ: In S.C. 410 we said we would give in a separate judgement our reasons for rejecting an application by the Appellant to adduce evidence pursuant to s 8 of the Supreme Court Act (Ch No 37). We now do so.

We pointed out from the outset that the Court was specially constituted of 5 Justices to determine the conflict of opinion that has arisen on s 8 of the Supreme Court Act (Ch No 37). The two cases relevant are John Peng v The State (1982) PNGLR 331 (Kidu CJ and Pratt and McDermott JJ) and Ted Abiari v The State [1990] ScotCS CSOH_3; (1990) SC 389 (Unreported judgement of Kapi DCJ & Los J with Amet J dissenting). Busina Tabe v The State (1983) PNGLR 10 was also mentioned during the hearing of the appeal and we make comments about it in this judgement.

In an appeal to the Supreme Court s 6(1) of the Supreme Court Act allows fresh evidence to be called.

“(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

(b) .....” (our emphasis)

For Section 6(1)(a) to apply the Court must be satisfied that the evidence sought to be adduced is “fresh evidence” and that the “justice of the case warrants it” to be adduced. This Court, in John Peng v The State (supra) pp 333-334, determined what “fresh evidence” is and it is not our intention to traverse the matter.

In John Peng v The State (supra) this Court, in an unanimous decision said of s 8 at p 337 as follows:

“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 the later case of Ted Abiari v The State (supra) the Court was divided - Kapi DCJ and Los J on one side and Amet J on the other. The majority view was as follows:

Kapi DCJ:

“This passage (i.e. page 9) insofar as it relates to the application of s 8 is obiter dicter 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.”

Los J:

“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 interest of justice to do so”. I note in John Peng’s case at p 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 of the evidence qualified under s 6 as fresh evidence.”

With respect to the Deputy Chief Justice and Los J both failed in their judgement to consider the introductory words of s 8, which are underlined hereunder:

“8. Supplemental Powers of Supreme Court

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

(a) order the production of any document, exhibit or other 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, be a referee appointed by the Court and act on the report of the referee so far as it thinks fit to adopt it; and

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

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

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

The majority in Ted Abiari v The State (supra) also failed to take note of what the nature of an appeal to the Supreme Court as stated by s 6 of the Supreme Court Act (supra) is: “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 ...” (our underlining).

Section 6 is not made subject to s 8. In fact it is s 8 which is made subject to s 6 in that it provides “For the purposes of this Act” - “this Act” includes s 6.

We endorse, with respect, our brother Amet J’s reasons in Ted Abiari v The State and we reproduce His Honour’s reasons hereunder by way of endorsement and emphasis:

“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 (supra) 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 legislatures 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 is it 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 to be retrying the case. It surely would not have been the legislatures intention 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 it’s terms. The statute must first be interpreted by it’s 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.”

Busina Tabe v The State (1983) PNGLR 10 was not a “fresh evidence” case and nor was it a case where s 8 was applied. The presiding Judge (Kaputin J) allowed the evidence to be adduced on the basis that an irregularity in the conduct of the trial had occured. He said at p 13: “However, I will of course allow the material in question on the basis that an irregularity in the conduct of the trial has occured”. Busina Tabe was convicted of stealing K4,500.00, the property of PNGBC and/or the Mendi Local Government Council. In fact evidence existed, known by both the prosecution and defence, that the K4,500.00 was really a book transfer and that Tabe never stole the money. It was on this basis the evidence was allowed to be called so that the actual miscarriage which had occured was rectified. Busina Tabe v The State (supra) is, therefore, authority for the proposition that although evidence is not “fresh” the Court will allow it to be adduced to do justice.

Lawyer for the Appellant: Public Solicitor

Lawyer for the State: Public Prosecutor