Chilen v State [2011] PGSC 8; SC1099 (4 March 2011)

SC1099

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCRA 21 OF 2008

BETWEEN:

WILLIAM CHILEN
Appellant

AND:

THE STATE
Respondent

Waigani: Injia CJ, Hartshorn J and Sawong J
2010: October 25th,
2011: March 4th

Application to admit fresh evidence – s. 6 (1) (a) and s. 8 (1) (b) Supreme Court Act

Facts:

The appellant was sentenced to 4 years imprisonment with hard labour, after pleading guilty to the charge of misappropriation of property. The appeal is against both his conviction and sentence. The appellant now applies for leave to file further affidavit evidence pursuant to s. 6 (1) (a) and s.8 (1) (b) Supreme Court Act.

Held:

1. The further evidence is not fresh evidence. One of the two mandatory requirements of s. 6 (1) (a) Supreme Court Act, that the proposed evidence to be adduced be fresh and that the justice of the case warrants it, have not been met.

2. Further, as it is settled law that s. 8 Supreme Court Act is merely a machinery provision which is supplemental to s. 6 Supreme Court Act, there is no basis upon which this court can grant the orders sought. Consequently the relief sought in the notice of motion of the appellant dated and filed 30th June 2010 is refused.

Cases

John Peng v. The State [1982] PNGLR 331
Abiari v. The State [1990] PNGLR 250
James Pari v. The State [1993] PNGLR 173
Rawson Construction Ltd v. Department of Works (2005) SC777
Ben Kairu v. The State (2005) SC782

Counsel:
Mr. M. N. Wilson for the Appellant
Mr. R. Auka for the Respondent

4th March, 2011

1. BY THE COURT: The appellant was sentenced to 4 years imprisonment with hard labour, after pleading guilty to the charge of misappropriation of property. He appeals against his conviction and sentence.

2. The appellant now applies for leave to file further affidavit evidence (further evidence) pursuant to s. 6 (1) (a) and s.8 (1) (b) Supreme Court Act. Although in written submissions, the further evidence is described as fresh evidence, counsel for the appellant conceded before us that the further evidence is not fresh evidence. He submitted however, that it is in the interests of justice that the appellant be permitted to rely upon the further evidence as it explains why he erroneously pleaded guilty.

3. By fresh evidence, as referred to in s. 6 (1) (a) Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782.

4. The State opposes the application as the further evidence is not fresh evidence and it is not in the interests of justice that the appellant be allowed to rely upon such evidence.

5. As it is conceded by counsel for the appellant that the further evidence is not fresh evidence, one of the two mandatory requirements of s. 6 (1) (a) Supreme Court Act, that the proposed evidence to be adduced be fresh and that the justice of the case warrants it, have not been met.

6. Further, as it is settled law that s. 8 Supreme Court Act is merely a machinery provision which is supplemental to s. 6 Supreme Court Act: Pari (supra); there is no basis upon which this court can grant the orders sought.

7. Consequently the relief sought in the notice of motion of the appellant dated and filed 30th June 2010 is refused.

8. The substantive appeal is adjourned to 14th March 2011 at 9.30 am to come before the listings Judge to fix a hearing date.

_________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
Office of the Public Prosecutor: Lawyers for the Respondent