Hariki v State [2007] PGSC 56; SC1320 (28 June 2007)

SC1320

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 12 0F 2003

ARUA MARAGA HARIKI
Appellant

V

THE STATE
Respondent

Waigani: Injia DCJ, Cannings J
2006: 28 November,
2007: 28 June

PRACTICE AND PROCEDURE – criminal appeal – application for leave to amend notice of appeal – proposed addition of new ground of appeal – whether Supreme Court has power to grant leave after settlement of appeal book – test to be applied when determining whether to grant leave.

JUDGES – member of Supreme Court ceasing to be a Judge after hearing of application–whether remaining Judges can deliver judgment – Supreme Court Act, Section 3, continuation of appeal notwithstanding absence of Judge

This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant wanted to add a new ground of appeal. The Public Prosecutor objected and submitted that the applicant would require leave under Section 155(2)(b) of the Constitution. Between the dates of hearing the application and giving of judgment, one member of the bench retired so the remaining Judges had to decide as a preliminary issue whether the Court was duly constituted.

Held:

(1) The objection was made "in the course of an appeal" and Section 3 of the Supreme Court Act allowed the remaining Judges to give judgment.

(2) A notice of appeal can be amended:

• (a) prior to the date for settlement of the appeal book – by supplementary notice, without leave;
  
• (b) after that date and before or during the hearing of the appeal – with the leave of the court.
  

(3) In a criminal appeal the test applied when deciding whether to grant leave is whether there are special circumstances in the particular case, which makes the case an exceptional case that warrants the grant of leave to amend the notice of appeal (Charles Ombusu v The State [1996] PNGLR 335 applied).

(4) In the present case, special circumstances exist making the case exceptional, in that the proposed amendment was raising an arguable point of law; the applicant has had a number of lawyers representing him; the application for leave was made prior to the hearing of the appeal; the applicant was facing the most serious penalty known to the law – death by hanging; the respondent will not be unduly prejudiced by the granting of leave.

Cases cited

The following cases are cited in the judgment:

Avia Aihi v The State [1981] PNGLR 81
Birch v The State [1979] PNGLR 75
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Charles Ombusu v The State [1996] PNGLR 335
Dinge Damane v The State [1991] PNGLR 244
Rolf Schubert v The State [1979] PNGLR 66
The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812
The State v Arua Maraga Hariki (2002) N2331
The State v Arua Maraga Hariki (2002) N2332
Van Der Kreek v Van Der Kreek [1979] PNGLR 185

APPLICATION

This was an application for leave to amend a notice of appeal.

Counsel

D Sakumai, for the applicant
P Kaluwin, for the respondent

28th June, 2007

1. INJIA DCJ AND CANNINGS J: This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant, Arua Maraga Hariki, was convicted by the National Court (Salika J) of two counts of wilful murder and sentenced to death. He has appealed against both convictions and sentence. A few days before his appeal was due to be heard, his lawyer, the Public Solicitor, filed an application to amend the notice of appeal. He wants to add a new ground of appeal. The respondent, the Public Prosecutor, representing the State, objects. The case raises these issues:

1. What are the requirements of the Supreme Court Rules regarding applications to amend notices of appeal?
   
2. Should this application be granted?
   

Before addressing those issues there is a peculiar aspect of the hearing of the application that we need to address, plus we need to explain the background of the case.

RETIREMENT OF A MEMBER OF THE BENCH

2. When we heard the objection the court was constituted by three Judges, one of whom – Los J – has since retired. This raises the issue of whether the Court, now consisting of only two Judges, can determine the objection. Or should it be set down for rehearing before three Judges? The general requirement arising from Section 161(2) of the Constitution is:

Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

3. Section 162(2) says:

In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

4. Section 3 of the Supreme Court Act is relevant. It says:

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge—

(a) the hearing of the appeal shall, subject to Subsection (2), continue; and

(b) the judgement shall be given by the remaining Judges; and

(c) the Court shall be deemed to be duly constituted.

(2) Where—

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

(b) in any case, there is only one Judge remaining able to hear the appeal,

the appeal shall be reheard.

5. Schedule 1.12 of the Constitution is also relevant. It says:

(1) Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

(2) Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body. ...

6. Section 3 of the Supreme Court Act says that where in the course of an appeal and at any time before the delivery of judgment a Judge hearing the appeal is unable to exercise his functions as a Judge, the judgment shall be given by the remaining Judges, provided that the parties agree to that course of action. In interpreting this provision we must by virtue of Section 158(2) of the Constitution give paramount consideration to the dispensation of justice. We should avoid if possible a multiplicity of hearings and further delay. Schedule 1.12 of the Constitution encourages us to take a practical approach to such issues, so that decisions made by constitutional institutions such as the Supreme Court are made expeditiously.

7. Though we have not heard an appeal, as such, we have heard an application, to amend the notice of appeal, that is incidental to, and an integral and preliminary part of, the appeal. The application was made "in the course of an appeal" and in our view that is sufficient for Section 3 to operate. Neither of the parties to the hearing of the objection has expressed any disagreement with the judgment being given by the remaining Judges. Therefore the Court is duly constituted, we are required to give the judgment and no rehearing is necessary.

THE NATIONAL COURT CASE

8. The Public Prosecutor presented two separate indictments against the applicant, each one charging him with wilful murder. He pleaded not guilty, a trial was conducted and on 23 December 2002 he was convicted (The State v Arua Maraga Hariki (2002) N2331). The victims were two young men from Baruni village, near Port Moresby: Heni Veidiho and Mathew Togiri. The National Court accepted eyewitness evidence and concluded that the applicant killed Heni Veidiho by holding him by the neck, cutting his air supply, in the course of a drinking session, intending to cause his death. The court did not draw a firm conclusion on how Mathew Togiri was killed but applied the rules of circumstantial evidence to conclude that whoever killed Heni Veidiho must have killed Mathew Togiri. These events happened near Baruni in March 2001.

9. The trial judge delivered judgment on sentence on 3 February 2003 (The State v Arua Maraga Hariki (2002) N2332). His Honour passed a sentence of life imprisonment for wilful murder of Heni Veidiho and the death sentence for the wilful murder of Mathew Togiri. His Honour imposed a higher penalty for the second death as there was evidence that Mathew Togiri was asleep at the time Heni Veidiho was killed; thus he saw nothing and there was no need to kill him.

THE APPEAL

10. The applicant, who had been represented by Mr A Amet Jnr of Maladinas Lawyers at his trial, himself filed an appeal shortly after his sentence, on 11 February 2003. That was superseded by a supplementary notice of appeal, filed on the applicant's behalf by the Public Solicitor a year later, on 6 February 2004. The supplementary notice of appeal contains four grounds. The first three contend that the convictions were unsafe and unsatisfactory. The last one relates to the death sentence:

(a) There was insufficient or inadequate evidence to prove beyond reasonable doubt that [the eyewitness] was with the appellant at the time of the murder of Heni Veidiho and that the appellant murdered Heni Veidiho.

(b) There was insufficient or inadequate evidence that the appellant killed Mathew Togiri.

(c) There was insufficient evidence upon which to infer that the appellant murdered Mathew Togiri.

(d) The death sentence imposed on the appellant for the murder of Mathew Togiri was manifestly excessive in all the circumstances of the case.

11. In October-November 2004 the Public Solicitor, Fraser Pitpit, and the Public Prosecutor, Chronox Manek, each certified the appeal book as being correct. The appeal was set down for hearing on 28 February 2005. However, five days before the hearing date, on 23 February 2005, the Public Solicitor filed the application now to be determined, to amend the supplementary notice of appeal. It proposes the following new ground of appeal:

That there was an error of law by the trial judge in allowing the two separate indictments, which charged the offences of wilful murder, to be heard together.

12. In a supporting affidavit Mr Pitpit states that in his opinion the hearing of two wilful murder charges together was a substantial irregularity, resulting in a miscarriage of justice, which deprived the applicant of his right to a fair trial. He pointed out that the applicant was not represented by his office at the trial but by a private law firm. The transcript of evidence was not available at the time that the supplementary notice of appeal was drafted. On 4 March 2005 the Public Prosecutor filed a notice of objection to the competency of the application to amend the supplementary notice of appeal.

FIRST ISSUE: WHAT ARE THE REQUIREMENTS OF THE SUPREME COURT RULES REGARDING APPLICATIONS TO AMEND NOTICES OF APPEAL?

13. Mr Kaluwin, of the Office of Public Prosecutor, representing the State, submitted that the application to amend the notice of appeal is incompetent as it has come too late. It was made well after the appeal book was settled and at the eleventh hour, a few days before the appeal was due to be heard. He submitted that the application must be confined to the grounds of appeal set out in the notice of appeal. Leave cannot be granted at this late stage. The only way the applicant can raise the issue he now wants to rely on is to apply to the Supreme Court under Section 155(2)(b) of the Constitution for a review – as distinct from an appeal – of the National Court's decisions. That means the applicant would need to satisfy the criteria laid down in Avia Aihi v The State [1981] PNGLR 81 and numerous subsequent cases, ie –

(i) it is in the interests of justice to grant leave;

(ii) there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(iii) there are clear legal grounds meriting a review of the decision.

14. We reject Mr Kaluwin's submissions. The Supreme Court Rules, Order 7, Rule 24, allow a notice of appeal to be amended at any stage of the appeal. Rule 24 states:

A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.

15. That rule applies to both civil and criminal appeals. It means that a notice of appeal can be amended by varying existing grounds, adding new grounds or deleting grounds, as follows:

• prior to the date for settlement of the appeal book – by supplementary notice, without leave;
  
• after that date and before or during the hearing of the appeal – with the leave of the court.
  

The cases on leave to amend notices of appeal

16. The Supreme Court said that that was the proper way to apply Rule 24 in Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112.

17. In The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812 the Supreme Court reviewed the case law on amendments to notices of appeal. The Court pointed out that applications to amend notices of appeal can be made even during the hearing of an appeal. In the earlier cases dealing with applications to amend notices of appeal, the court had voiced its strong displeasure at the practice of counsel asking for last minute amendments to a notice of appeal. Leave would only be granted in exceptional circumstances and at the discretion of the court, eg a sudden late change of counsel for the appellant, where the point to be raised seemed broadly to have merit (eg Rolf Schubert v The State [1979] PNGLR 66).

18. Leave to add new grounds of appeal should not be granted on the day set for hearing where such grounds should properly have been included in the notice of appeal and where further adjournments would unduly delay the hearing of the appeal, unless adequate reasons were shown (Birch v The State [1979] PNGLR 75). Applications to add grounds of appeal in the course of an address in reply should not be entertained (Van Der Kreek v Van Der Kreek [1979] PNGLR 185). However, the Supreme Court has never said that it has no power to grant leave to amend. Even late applications to amend will be entertained, and granted in appropriate circumstances.

19. In a criminal appeal, exceptional circumstances existed when the appeal was originally filed as a 'prisoner appeal', it took two years for the Public Solicitor to assign the appellant legal representation and the Public Prosecutor had adequate notice of the proposed amendment and did not oppose it (Dinge Damane v The State [1991] PNGLR 244).

The Ombuso test

20. In Charles Ombusu v The State [1996] PNGLR 335, the Supreme Court (Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J) held that the focus should be more on "special circumstances" than "exceptional circumstances".

The test is ... whether there are special circumstances in a particular case, which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal. It is not whether there are exceptional circumstances that would warrant the grant of leave. The majority in Dinge Damane fell into this error, of referring to the special circumstances as exceptional circumstances.

21. The Ombusu test is less restrictive than the test applied in the previous cases. It was formulated in a unanimous decision of a five-member bench. As stated in the Papua Club case it must now be regarded as circumscribing the circumstances in which the Supreme Court will grant leave for amendment of a notice of appeal, at least in criminal appeals. An applicant does not have to resort to Section 155(2)(b) of the Constitution in order to be granted leave to amend a notice of appeal. An application of the sort made on the applicant's behalf in this case by the Public Solicitor is sufficient. We reiterate that the test to be applied in light of Ombusu's case is:

• Are there special circumstances in this case, which make it an exceptional case warranting the grant of leave to amend the notice of appeal?
  

How to decide whether special circumstances make it an exceptional case?

22. In determining whether there are special circumstances we suggest that the things that ought to be considered include:

1. If it is a new issue of law that is being raised, should it have been raised earlier?
   
2. Is the amendment so significant that it could reasonably be expected to determine the result of the appeal?
   
3. Is the amendment raising an arguable point of law?
   
4. Has there been a change in the applicant's legal representation?
   
5. Is the application being made at the hearing or before the hearing of the appeal?
   
6. Is there any good reason that the need for the amendment was previously overlooked?
   
7. Will the respondent be prejudiced by the amendment?
   
8. What is the significance of the merits of the appeal?
   
9. Is the life or liberty of the applicant at stake?
   

23. That is not intended to be an exhaustive list. Rather it is a collection of some of the considerations the court can take into account when determining whether special circumstances exist.

SECOND ISSUE: SHOULD THE APPLICATION TO AMEND THE NOTICE OF APPEAL BE GRANTED?

24. We will now apply the Ombuso test to this case and consider the matters we have just outlined.

1. The proposed amendment is raising an entirely new ground of appeal and it should clearly have been raised earlier. For Mr Pitpit to say that the transcript was not available when the supplementary notice of appeal was filed, is not a good excuse. Nine months lapsed between the filing of the supplementary notice of appeal and the settlement of the appeal book. The appeal book should not have been settled without a thorough examination of the transcript. Moreover, the transcript was not required to appreciate that two separate indictments were presented.
   
2. The proposed amendment is a very significant one. The contention is made that the presentation of two separate indictments resulted in a substantial miscarriage of justice. The argument appears to be that the court used the evidence adduced about the killing of Heni Veidiho to infer that, despite the absence of further evidence, the applicant also killed Mathew Togiri. A related argument is apparently that Section 531 of the Criminal Code, which prevents 'lumped' trials of wilful murder and other offences, impliedly bars a lumped trial of two wilful murder charges. If this ground of appeal were successful, the result could be that the convictions would be quashed.
   
3. We consider that a cursory examination of the argument means that it can be reasonably regarded as raising an arguable point of law.
   
4. The applicant has had a change of lawyers and this may have resulted in some confusion about what happened at the trial.
   
5. The applicant has not waited until the day of the hearing before filing the application. It was a late application as it was made after the appeal was set down for hearing. But the Public Solicitor, and therefore the applicant, deserves some credit for not leaving the application to the hearing day.
   
6. We can see no good reason for the need for the amendment being previously overlooked. It appears that the Public Solicitor did not examine the case sufficiently closely after having received instructions from the applicant.
   
7. We do not see how the respondent will be unduly prejudiced by the amendment. The Public Prosecutor has had ample time to prepare to argue the point raised by the amendment.
   
8. The merits of the appeal will, even if leave to amend the notice of appeal is refused, raise significant legal issues, eg application of the rules regarding circumstantial evidence and the circumstances in which the National Court is warranted in passing the death sentence.
   
9. The life of the applicant is at stake. He is facing the death sentence. No more serious case can be envisaged.
   

25. All of the considerations except those numbered (1) and (6) favour the granting of leave. We have no difficulty in concluding therefore, notwithstanding those two considerations, that there exist special circumstances in this case, which make it an exceptional case warranting the grant of leave to amend the notice of appeal. We will therefore uphold the application and grant leave to amend the supplementary notice of appeal.

ORDER

(1) Leave is granted to amend the supplementary notice of appeal, as proposed in the application filed on 23 February 2005.

(2) The applicant shall file a consolidated notice of appeal within seven days after the date of entry of this order.

(3) The appeal shall be set down for hearing at the next sittings of the Supreme Court at Waigani.

Judgment accordingly.

___________________________________________

Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent