Maima v The State [1998] PGSC 44; SC574 (12 October 1998)

Unreported Supreme Court Decisions

SC574

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW 44 OF 1996
BETWEEN: PETER KAWA MAIMA
APPLICANT
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ Sheehan Jalina JJ
30 September 1998
12 October 1998

JUDICIAL REVIEW – s 155 (2) (b) of the Constitution – principles on which the Supreme Court may review findings of fact.

Counsel

Applicant in Person

C. Sambua for Respondent

12 October 1998

KAPI DCJ SHEEHAN JALINA JJ: This matter has come before this Court for review pursuant to Constitution s 155 (2) (b) because the applicant lost his right of appeal by failing to lodge his appeal within the 40 days allowed by s 17 of the Supreme Court Act.

The principles which apply when considering whether leave should be granted for judicial review pursuant to Constitution s 155 (2) (b) is well established in Avia Aihi v. The State (No. 2) (1982) PNGLR 44 and other cases. One of the principles is that leave should be granted in exceptional circumstances where some substantial injustice is manifest or the case is of special gravity.

In Danny Sunu v. The State [1984] PNGLR 305, Pratt J and McDermott J said at p. 307 in regard to the principle in Avia Aihi (No. 2):

“The principle is that the discretion will be exercised only where it is in the interest of justice, and the court is satisfied there is “grave reason to apprehend, that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case.”

In SCR No. 5 of 1988; Kasap v. Yama [1988-89] PNGLR 197, the Supreme Court was concerned with a judicial review in an election matter. However, the principles emaciated in respect of review of trial judge’s findings of fact are applicable where the applicant had lost the right of appeal under the Supreme Court Act. Woods J. expressed the principle accurately on page 208:

“Under the Organic Law on National Election there is no appeal from the hearing of a petition by the National Court. The applicants here are therefore seeking their constitutional right to have a review if a decision by a judicial body from which there is no appeal. This Court should therefore not allow such a review lightly when Parliament has itself declared there should be no appeal.

There must therefore be a gross error clearly apparent on the face of the evidence before this Court should review.”

The basis of application for review is that the State failed to discharge the onus of proving that the applicant was a party to the crime. The applicant says that the principal witness, Mary Erehe failed to identify him during his trial.

The relevant part of her evidence relating to identification appear at p. 163 of the Review Book.

“Q: Look around the Court room. This person you saw him at the house and you picked him up at the identification parade, the person with sharp nose. Are you able to see him in Court?

A: No, your Honour.

Q: In this court room?

A: No.”

The State had the onus of proving beyond reasonable doubt that the applicant was a party to the crime. The evidence clearly shows that the State failed to discharge this onus.

In his judgment (p. 212 –213 of Review Book) the learned trial judge said:

“No doubt the State expected the witness, Mary Erehe was in a witness box to say that the man at the dock is the one she saw at the house on the 10 February, 1995 and then again identified on the 28 February, 1995. Now, in my view, the question put by the State was so general and wide that the answer given was fair in this circumstances. Now, the circumstances are noted here are firstly, there were four accused in the dock, plus a couple of correctional officers. Secondly, most accused had short haircut and were cleaned shaven. Thirdly, the audience in the court room at the time.

Fourthly, there were lawyer, interpreter, court attendants, and fifthly, this witness was given evidence one year and four months later after she last identified the accused at the parade on 28 February, 1995. These are circumstances which in my view I say, the answer no was fair. Therefore, on the whole of the evidence, I am satisfied beyond reasonable doubt that the accused Peter Kaua Maima was sufficiently identified and that he was a party to the robbery and stealing of the Tata Mobil vehicle at Morata.”

During evidence in chief, the State Prosecutor did not seek to clarify matters the learned trial judge referred to in his judgment so it is clear to us that his Honour has taken into consideration matters which were not properly raised before him and in doing so justice has miscarried. The learned trial judge therefore erred in law in convicting the applicant.

We accordingly quash the conviction and direct that a verdict of not guilty be entered.

Applicant in Person

Lawyer for the Respondent: Public Prosecutor