James v State [2019] PGSC 130; SC2120 (27 November 2019)

SC2120

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 74 OF 2017

BETWEEN
ELIZABETH JAMES
Appellant

AND
THE STATE
Respondent

Lae & Waigani: David, Toliken JJ
2018: 28^th August
2019: 27^th November

APPLICATION FOR LEAVE TO REVIEW – Conviction – Grant of leave - Whether in the interest of justice – Whether cogent, convincing and exceptional reasons demonstrated – Whether there are clear grounds meriting a review - Constitution, s 155 (2)

CRIMINAL LAW - Review – Conviction substantially on circumstantial evidence - Whether unsafe and unsatisfactory – Participation by trial judge in trial - Whether the trial judge unduly participated in the trial – Crime scene visit - Whether the trial judge erred when he visited the scene of the crime in the absence of the parties - Whether there was miscarriage of justice.
Facts

The Applicant initially sought leave to review her conviction and sentence for stealing. She, however, abandoned her challenge on her sentence during the hearing. Her reasons for failing to appeal within the stipulated time period was that her lawyer failed to secure Legal Aid for her and she fell pregnant and could not take further steps to progress her appeal. She filed her application for review 1 year and 24 days after the period stipulated to appeal.

The evidence against her was essentially circumstantial. Also, in the course of the trial, the trial judge participated in the examination of witnesses and visited the scene of the crime without the presence of the parties.

Held

1. The Court should not too readily accede to applications of this nature as to do so will not engender fidelity to established principles. Each case must, however, be treated on its own merits and circumstances.
   
2. Applications for leave to review against criminal convictions and sentences involve the liberty of persons hence the Court should not shy away from exercising its inherent jurisdiction where appropriate in the interest of justice.
   
3. The Applicant’s lawyer’s negligence or failure to lodge an appeal is not a ground to justify the grant of leave to review: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522 and Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110. Pregnancy is not an exceptional circumstance because the nine months of normal gestation or pregnancy would not have incapacitated her in any way or prevented her from pursuing her appeal.
   
4. Notwithstanding that, a consideration of the merits of an application for review may outweigh the failure to lodge an appeal within time if such consideration provides cogent, convincing reasons and exceptional circumstances: Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110.
   
5. The evidence that led to the Applicant's conviction was entirely circumstantial and there appears to have been other persons who may have committed the offence. Hence the conviction may not have been safe. Furthermore, there also appears to be some irregularity in the conduct of the trial judge in that His Honour may have unduly participated in the trial and may have further erred by visiting the scene of the crime without the presence of the defence and the prosecution. These are cogent and convincing reasons and exceptional circumstances that ought to outweigh the Applicant's reasons for failing to lodge her appeal within the stipulated time, which we have found are not cogent and convincing in themselves.
   
6. While His Honour did not specifically refer to the principle on convicting on circumstantial evidence in his oral judgment, it is clear to us that he had adverted his mind to the other possibilities suggested by the defence and logically eliminated those persons whom the defence suggested could have committed the crime. His Honour concluded that the only conclusion or inference that could be drawn, given the prevailing facts, was that it was the Applicant who stole the takings. We agree with His Honour that the guilt of the Applicant was the only rational and reasonable inference that could have been logically drawn in the circumstances. We find no error in His Honour’s reasonings and conclusion. This ground should therefore be dismissed.
   
7. A judge ordinarily should not descend into the arena of counsel or unduly participate in the trial or examination of witnesses. However, where appropriate, he is entitled to ask questions, as is within his discretion and duty to do, to clarify an obscure answer, or where he thinks the witness has not understood a question put to him by counsel or where he is of the view that matters have not been sufficiently cleared up or where he thinks that questions ought to have been put which were not put to the witness in order to supply any perceived deficiency: Birch v The State [1979] PNGLR 75.
   
8. In the instant case, while it may be said that the trial judge had posed more questions than perhaps was necessary, we do not think that His Honour participated unduly in the trial to such an extent that his judgment was clouded. On the contrary, His Honour based his decision entirely on what we see as unassailable facts, circumstantial as they were, which pointed logically, rationally and reasonably to the Applicant's guilt.
   
9. The purpose of a crime scene visit is to enable the trial judge to better understand and appreciate the questions raised at trial and to better follow the evidence: Tom v The State (2008) SC 967.
   
10. The judge’s observations of the crime scene, should not, however, substitute the sworn evidence put before him: Kristoff v R [1967– 68] PNGLR 415.
    
11. A trial judge should refrain from visiting a crime scene alone, even if the scene is conspicuous and open to public view, let alone, bring his observations to the attention of the parties where they were not present when he visited the scene. If he forms an opinion that it is desirable and/or necessary to visit the scene, then it must be done openly and in the presence of both the prosecution and the defence.
    
12. A criminal trial is a serious matter where the liberty of the accused hangs in the balance, and therefore a trial judge must ensure that he does not go on a frolic of his own or inform himself of matters which are unclear from the evidence without inviting the parties to the scene, if he so decides to visit the scene.
    
13. The discretion to visit a crime scene must be exercised on proper principle with the view to according an accused person a fair and impartial trial so that justice is not only done but seen and believed to have been done.
    
14. In the instant case, while his Honour may have been unwise in visiting the scene (however casually) without the parties, we are of the view that the verdict turned neither on his Honour's observations of the crime scene, nor on any perceived undue participation by him in the trial, but principally on the conduct of the Applicant, and His Honour’s treatment and assessment of the circumstantial evidence before him. We find no error or miscarriage of justice.
    
15. Leave for review is refused.
    
16. The review is dismissed and conviction is confirmed.
    

Cases Cited:
Papua New Guinea Cases

Avia Aihi v The State (No.1) [1981] PNGLR 81
Bob v The State [2005]; SC808
In Re Application of Maddison (2009) SC 984)
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Peter Dickson Donigi v Base Resources Ltd [1992] PNG 110
John Beng v The State [1977] PNGLR 177
Birch v The State [1979] PNGLR 75
Tom v The State (2008) SC 967
Peter Roy Wieden v Bogunu Di’i [1976] PNGLR 101
Paulus Pawa v The State [1981] PNGLR 498.
The State v Tom Morris [1981] PNGLR 493

Overseas Cases

Yuill v Yuill [1945] 1 All E.R. 183

Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 WLR 760

Counsel:

E Sasiangian, for the Appellant
P Kaluwin, for the Respondent

JUDGMENT ON APPLICATION FOR REVIEW

27^th November, 2019

1. DAVID & TOLIKEN, JJ: The Applicant, Elizabeth James originally sought the review of her conviction and sentence by the National Court for one count of stealing in contravention of Section 372(1)(7)(a) of the Criminal Code Ch.262. At the hearing it appeared, however, that she abandoned her application for review of her sentence.

2. Between the hearing of the application for review and the giving of judgment, a member of the bench, the Late Justice Foulds passed away so judgment is being given by the remaining judges with the agreement of the parties pursuant to Section 3 of the Supreme Court Act.

BACKGROUND

3. The Applicant was convicted after trial by the National Court on 06th May 2016 for the theft of K73,125.00 out of the K77,150.00 she was alleged to have stolen from her employer JKT Lim Limited. On 13^th May 2016 she was sentenced to 4 years imprisonment. The sentence was wholly suspended on the condition that she makes full restitution within 18 months. She managed to repay K9,000.00 only within that period and was subsequently imprisoned on 13 November 2017. She filed her Review Application on 17 July 2017, 1 year and 24 days after the expiration of the stipulated period of appeal lapsed.

4. We heard the leave application and the substantive review together. The State opposed both grant of leave and substantive review.

LEAVE TO REVIEW

5. For leave to be granted for review of an order of the National Court under Section 155(2)(b) of the Constitution, where an applicant fails to avail himself to the right of Appeal within 40 days as stipulated under the Supreme Court Act (s 29), he must meet the following requirements:

1. It is in the interest of justice to grant leave; and

2. There are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and
   3. there are clear legal grounds meriting a review: Avia Aihi v The State (No.1) [1981] PNGLR 81.

6. In deciding whether or not there are clear and convincing reasons for grant of leave, two other considerations are relevant and these are; an applicant needs to first, explain why he did not file his appeal within time and second, show that the case sought to be reviewed has merit: Bob v The State [2005] SC808; In Re Application of Maddison (2009) SC 984.

7. In support of her application for leave the Applicant relied on her affidavit sworn and handed up in Court at the time of hearing. She advances three reasons for her failure to appeal within the stipulated period. These are:

1. As a layman she was not aware of the procedural requirements for lodging an appeal against her conviction.
2. Her efforts to lodge an appeal within time were hampered by her Lawyers failure to secure Legal Aid from the Public Solicitor despite numerous and repeated representations to her from June to November 2016.
3. She fell pregnant in December 2016. She was preoccupied during her period of confinement or pregnancy and had little contact with her lawyer until she delivered her child on 09 May 2017. After that she followed up with her lawyer only to be told that her application for Legal Aid had not been received by the Office of the Public Solicitor. The lawyer then assisted her to file her application for review on 17 July 2017, a year and 24 days after the lapse of her 40 days to lodge an appeal.

8. So, has the Applicant met the requirements for leave to review?

9. Mr. Sasingian submitted on behalf of the Applicant that her trial lawyer's negligence in failing to assist her secure Legal Aid and the interest of justice justifies grant of leave. The failure to lodge an appeal was not her fault, but the Public Solicitor's because only he can grant Legal Aid.

10. Counsel further submitted that the fact that the Applicant had fallen pregnant at the time she was pursuing her appeal, coupled with her inability to secure Legal Aid from the Public Solicitor in order to lodge her appeal are cogent and convincing reasons for grant of leave.

11. As to whether there are clear legal grounds meriting a review, Mr. Sasingian argued that there are. The State's case was essentially circumstantial and there were other inferences apart from the Applicant's guilt. It was therefore open to the trial judge to draw a conclusion that the crime may have been committed by someone other than the Applicant, but he failed to do so.

12. The Public Prosecutor Mr. Kaluwin submitted that the Court must refuse leave because the Applicant's claim of ignorance of the law, her difficulty in seeing her lawyers and pregnancy are not convincing reasons for the Court to exercise its inherent powers under Section 155(2)(b) of the Constitution. Counsel urged the Court to apply the law and not to accede to the Applicant's application because for far too long the Court has too readily been bending towards unrepresented appellants in the face of well-established principles.

INTEREST OF JUSTICE

13. So, is it in the interest of justice for leave to be granted?

14. There is some merit in Mr. Kaluwin's argument that the Court should not too readily accede to applications of this nature, for indeed it will not engender fidelity to established principles if the Court is over-indulgent on people who do not comply with the law and procedures.

15. Each case must, however, be treated on its own merits and circumstances. Applications for leave to review against criminal convictions and sentences involve the liberty of persons hence the Court should not shy away from exercising its inherent jurisdiction where appropriate in the interest of justice: Bob v The State (supra). The Court should, however, not be over indulgent on applicants who sit on their intentions or right to appeal and do not take appropriate steps to that end, lesser still on unmeritorious applications. Therefore, where the justice of the case requires the Court may grant leave to persons who have exhausted their right to appeal. We consider that it is not in the interest of justice to grant leave.

COGENT, CONVINCING & EXCEPTIONAL CIRCUMSTANCES

16. Are there cogent and convincing reasons and exceptional circumstances to warrant grant of leave?

17. The Applicant relied firstly on her trial lawyer's failure to advance her appeal through the Public Solicitor by first granting Legal Aid before she can lodge her appeal. Her other reason is that she fell pregnant in December of 2016. This in our view is not an exceptional circumstance because her 9 months of normal gestation or pregnancy would not have incapacitated her in any way or prevented her from pursuing her appeal.

18. As it turned out the Public Solicitor never received the Applicant's papers and it is obvious that the Applicant's trial lawyer was negligent notwithstanding that she could not act for the Applicant unless Legal Aid was granted. It is, however, settled that a lawyer's negligence or failure to lodge an appeal is not a ground to justify the grant of leave to review: New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110.

19. Notwithstanding that, in Peter Dickson Donigi v Base Resources Ltd [1992] PNGLR 110, the court there said that a consideration of the merits of a review may outweigh the failure to lodge an appeal within time if such consideration provides cogent, convincing reasons and exceptional circumstances. The Court said:

For the purposes of this case, it can be stated that this case supports the proposition that negligence of a lawyer in failing to file a notice of appeal or failing to protect the right of appeal does not amount to an exceptional circumstance to warrant an exercise of jurisdiction to review. Secondly, notwithstanding that there has been a failure by the lawyer to protect the interest of the applicant, the Court should consider whether the merits of a review provide any cogent and convincing reasons and exceptional circumstances in favour of granting leave to review. This consideration may outweigh the reasons for failure to lodge the notice of appeal within time. (Underlining supplied)

20. So, do the merits of the proposed review provide cogent and convincing reasons and exceptional circumstances?

21. We have considered the proposed grounds of review and have perused the transcript. The evidence that led to the Applicant's conviction was entirely circumstantial and there appears to have been other persons who may have committed the offence. Hence the conviction may not have been safe.

22. Furthermore, there also appears to be some irregularity in the conduct of the trial judge in that His Honour may have unduly participated in the trial and may have further erred by visiting the scene of the crime without the presence of the defence and the prosecution.

23. However, it will become obvious later on in our judgment that the trial judge did not commit an error in convicting the appellant as charged. Thus, there are no cogent and convincing reasons and exceptional circumstances to warrant grant of leave.

24. We amplify our reasons below.

Grounds of review

25. The original grounds of review were as follows:

1. There was insufficient, inadequate evidence or no evidence to prove stealing beyond reasonable doubt in that the evidence of State witnesses relied upon by the trial judge to convict the appellant were incredible and had major inconsistencies;
2. The trial judge erred by not considering the Appellant's oral testimony which was consistent with the account she gave in her record of interview;

c) There was a breach of the Appellant's constitutional right for a fair trial (i) when she was subjected to questions by the trial judge after the trial judge visited the crime scene without according her the full protection of the law;

(ii) when her application for adjournment was refused and later finding [were] made on lack of corroboration.

4. The trial judge descended into the lawyers’ arena and assumed the prosecution role in examination of the witnesses.

26. At the hearing the Appellant consolidated grounds (a), (b) and (c) so effectively there are two grounds only. However, ground (c) (i) can best be argued with ground (d) as they essentially are the same.

Issues

27. The issues to determine are:

1. Whether the conviction was unsafe and unsatisfactory?

2. Whether the trial judge unduly participated in the trial?

3. Whether the trial judge erred when he visited the scene of the crime in the absence of the parties?

4. Whether there was miscarriage of justice?

The Law

28. The Court's power for review stems principally from Section 155(2)(b) of the Constitution. Where leave to review a conviction is granted, then the applicant must demonstrate an error(s) on the part of the trial judge as provided by Section 23 of the Supreme Court Act. Section 23 relevantly provides:

23. DETERMINATION OF APPEALS IN ORDINARY CASES.

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that–

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.

(4) ...

29. Essentially then, the applicant must demonstrate the following:

(i) the verdict is unsafe and unsatisfactory under all the circumstances; or

(ii) the decision was grounded on a wrong decision on any question of law; or
(iii) there was a material irregularity in the trial: John Beng v The State [1977] PNGLR 177.

Safeness and Satisfactoriness of Verdict

30. Mr. Sasingian submitted that His Honour's reasons for the decision on verdict was inconsistent with the following proven facts:

1. The shop was previously broken and entered into by thieves in 2013, where goods and the spare safe key and combination codes were stolen;
2. The safe lock and combination code were not changed after the 2013 theft and remained so until the incident in question;

c) the Applicant left the safe key that evening in the shop office where it is usually kept;

4. The staff at the service station were all aware of the total takings that were kept in the safe that night after it was counted by the Applicant and communicated to the Headquarters in Lae;
5. The Applicant gave all the shop keys to Yata Gumaira who held them as was the normal practice from 6.30p.m. to 6.30 a.m. the next morning;
6. The combination code of the safe was written on paper by the previous manager before he left in 2010 and kept in the office for the Applicant to open the safe;
7. It was there all night from 6:30 pm to 6:30 am when anything could have happened to the safe in that period of time;
8. Yata Gumaira returned to the service station that night at 8.00p.m. to have a shower;
9. The next morning it was discovered that shop and the safe doors had been opened and the money was missing;
10. When asked by the police to hand over the safe key it took a bit of time for the Applicant to locate the key from the shelf;
11. The Applicant did not know what happened that night and did not even blame Yata Gumaira when asked by the trial judge as she was not sure of what happened.

31. There is no question that the State's case was essentially circumstantial. The law on circumstantial evidence is settled. In a criminal trial, where the case is wholly circumstantial, the court must acquit unless the proven facts are inconsistent with any reasonable hypothesis or inference other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498. And to justify a finding of guilt against the accused beyond a reasonable doubt, it is necessary, not only that his guilt is a rational inference, but that it should be the only rational inference that the circumstances would enable it to draw: The State v Tom Morris [1981] PNGLR 493.

32. So, was the guilty verdict inconsistent with any reasonable hypothesis or inference other than the guilt of the Applicant?

33. The State's case was essentially that since the Applicant was the only one who last handled the cash and put it away in the safe before locking it and putting the safe key away, the only one who knew the combination to the safe, and the last person to have locked the inside doors as well as the outer door, then the only person who could have taken the money was the Applicant herself.

34. The Applicant offered other possibilities - that other people would have accessed the office and the safe. This included the Pump Supervisor Yata Gumaira, Security Guard Francis Richard and the former Manager.

35. The learned trial judge made the following principal findings -

• the Applicant was the last to have physically handled the cash after balancing two days of takings.
  • She deposited the money (K73,150.00) in the safe.
  • She was the only one who knew the safe combination and the only one who had access to the key to the safe and where she placed it in the office.
  • She was the last one to leave the office and locked the entrance door behind her.
  • She gave the office keys (except the safe key) to Yata Gumaira the Supervisor and she was dropped off at the Madang Resort to catch a dinghy to Kranget Island where she lived.
  • Yata Gumaira did return to the Service Station that night to have a shower at the back of the Service Station, but did not enter the office.
  • Yata Gumaira returned to the service station the next morning and gave the office keys to Francis Richard who opened the main entrance door and subsequently discovered all four internal office doors unlocked, including the door to the office where the safe was. The safe was also open but devoid of its contents.
  • That the facilities were previously broken into under the previous management.

36. We find that His Honour had addressed himself well to the possibility that someone else, other than the Appellant, could have stolen the money. His Honour eliminated each person whom the defence suggested could have taken the money. (See pp. 103 - 107 of the Appeal Book)

37. In respect of Yata Gumaira, His Honour accepted that Yata Gumaira had returned that night to the Service Station and had his shower outside and that he had the office keys. However, the His Honour said that if he had gone into the office he would have been seen by Francis Richard and the other security guard unless there was a conspiracy between them, but there was nothing of that sort. And even if Yata Gumaira had entered the office, he did not know where the safe key was, let alone, the safe combination. His Honour therefore discounted, or eliminated any involvement by Yata Gumaira.

38. His Honour then considered that it could not have been Francis Richard because while he did open the main external glass door the next morning when given the keys by Yata Gumaira, he was in there for about 4 minutes only. He noticed that all internal office doors and the safe were open, but even if he had the opportunity to steal the takings, His Honour found that he also did not know where the safe key was or the safe combination for that matter.

39. And for the former manager, His Honour held that while he may have known the safe combination, there was no way he could have gained access to the safe without breaking in. There was no such break in.

40. Based on these, His Honour held that the only inference that can be drawn was that the Applicant was the only one who could have stolen the money.

41. While His Honour did not specifically refer to the principle on convicting on circumstantial evidence in his oral judgment, it is clear to us that he had adverted his mind to the other possibilities suggested by the defence and logically eliminated those persons whom the defence suggested could have committed the crime. His Honour concluded that the only conclusion or inference that could be drawn, given the prevailing facts, was that it was the Applicant who stole takings.

42. We agree with His Honour that the guilt of the Applicant was the only rational and reasonable inference that could have been logically drawn in the circumstances. We find no error in His Honour’s reasoning and conclusion. This ground should therefore be dismissed.

Undue Participation in The Trial

43. A judge ordinarily should not descend into the arena of counsel or unduly participate in the trial or examination of witnesses. However, where appropriate, he is entitled to ask questions, as is within his discretion and duty to do, to clarify an obscure answer, or where he thinks the witness has not understood a question put to him by counsel or where he is of the view that matters have not been sufficiently cleared up or where he thinks that questions ought to have been put which were not put to the witness in order to supply any perceived deficiency. Generally, this should be done when counsel has finished his questions or is passing onto a new area. The judge does not know what is in counsel's brief and therefore is not in as good a position as counsel to put a question at the right time on a crucial point. The judge's intervention may destroy the strength of the examination-in-chief, or cross-examination as the case may be. Where a question is a crucial one, counsel will see as clearly as the judge, but it is for counsel to put. Furthermore, a judge who actively and unduly participates in examining a witness is susceptible to having his judgment clouded: Yuill v Yuill [1945] 1 All E.R. 183 applied in Birch v The State [1979] PNGLR 75.

44. In short, a judge should avoid dropping the mantle of a judge and descending into the arena and assume the role of an advocate: Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 WLR 760.

45. In Birch v The State [1979] PNGLR 75 where the trial judge, among other things, asked more questions to the witness than the prosecutor (186 as opposed to 123), and where no objection was taken to this course at trial the Supreme Court held, among other things, that the circumstances of the country may require a judge to exercise his discretion in how he/she conducts the proceedings balancing the interest of the State and that of the accused defending a charge, owing often times to inexperienced prosecutors and inexpert evidence gatherers.

46. In the instant case, we have perused the transcript, and while it may be said that the trial judge had posed more questions than perhaps was necessary, we do not think that His Honour participated unduly in the trial to such an extent that his judgment was clouded. On the contrary, His Honour based his decision entirely on what we see as unassailable facts, circumstantial as they were, which pointed logically, rationally and reasonably to the Applicant's guilt.

47. We therefore find no error in His Honour's treatment of the evidence, his finding of the relevant facts and his application of the relevant principles to those facts.

48. This ground of appeal should also therefore be dismissed.

Visit to the Crime Scene

49. What about His Honour’s visit to the crime scene?

50. The court’s power to view a crime scene is provided by Section 574 of the Code. It relevantly provides:

The court may in any case view any place or thing that it thinks desirable that it should see.

51. The power is discretionary and is usually exercised if a visit to the scene is necessary and/or desirable. This is a matter for the trial judge to decide. A party may of course apply for a visit to a crime scene, but he must make out a case for it: Tom v The State (2008) SC 967; Peter Roy Wieden v Bogunu Di’i [1976] PNGLR 101.

52. In Tom v The State (2008) SC 967, the appellants took issue with the trial judge’s refusal to visit the scene of the crime. His Honour did not think that it was desirable to visit the crime scene as the evidence before him was sufficient to act upon. In dismissing this ground of appeal the Supreme Court said:

14. ... It is clear that, at the end of the State's evidence, it applied for a visit of the scene, which the defence supported. The Court deferred a decision on the application until the end of the defence case. At the end of the defence case, the defence made the application again.
15. According to the transcript, it is clear that the trial judge took into account the relevant statutory provision concerning the application before him. That is s. 574 of the Criminal Code. This provision, vests discretion in a trial judge to view the scene of a crime, if the trial judge forms the view that a visit of the scene is necessary and or desirable. Usually, scenes are visited in appropriate cases for the Court to get a better understanding and appreciation of the evidence already before him or her, particularly in relation to the physical settings of the place at which an alleged offence may have been committed. Where on the evidence before a trial judge, it is easy to understand the evidence and come to a decision, visiting a scene would serve no useful purpose and amount to unnecessary costs. Hence, discretion is in a trial judge to decide when to and when not to view the scene of a crime. Therefore, there is no obligation on a trial judge to view the scene of a crime. It should thus follow that, unless the court in its own discretion decides to view the scene, a party who wants the Court to view the scene of a crime must make out a case for it.
16. In this case, the trial judge decided that the evidence before him was sufficient and that he could act on it. Therefore, he ruled that, it was not desirable to take a visit of the scene. Accordingly, he declined the application for a visit of the scene. Apart from pointing out that the trial judge made a decision against visiting the scene of the crime, the appellants have not demonstrated that, the trial judge erroneously arrived at his decision and that in doing so, justice miscarried. The appellants have failed, for example, to point how a visit of the scene would have assisted in establishing or clarifying something in their favour thereby causing justice to be miscarried. The onus was on the appellants' to demonstrate an erroneous exercise of the discretionary power vested in the trial judge. In the circumstances, we cannot see how the learned trial judge could have fallen into any error in the exercise of the discretion vested in him. Accordingly, we would order appeal ground A (iii) (i) to be dismissed as having no merit. (Underlining added)

53. The purpose of a crime scene visit then is to enable the trial judge to better understand and appreciate the questions raised at trial and to better follow the evidence.

54. The judge’s observations of the crime scene, should not, however, substitute the sworn evidence put before him: Kristoff v R [1967– 68] PNGLR 415.

55. In Kristoff v R [1967– 68] PNGLR 415, the appellant appealed against his conviction for manslaughter by the pre-independence Supreme Court of the Territory of Papua & New Guinea to the High Court of Australia. He was originally charged with the wilful murder of an indigenous customer to his shop, who together with others, he and his wife had testified appeared at their shop angry and agitated and threatened to rape the wife and kill them and their child. The appellant shot the deceased with a shotgun when he tried to push open a wire gate in the cyclone wire netting that guarded the space between the top of the counter and the ceiling. In the course of the trial, the trial judge (Frost J as he then was) visited the scene twice on the request and in the presence of counsel for the Crown and counsel for the defence. On the first occasion His Honour noted that the nails were in the door but not tightly driven in. On the second occasion the door had been wrenched apart and the nails pulled apart. His Honour concluded that the door had been tampered with during the course of trial to support the case put forward by the defence and therefore rejected evidence of the appellant and his wife.

56. The High Court held that the trial judge overstepped the limits that may be made of a view by substituting for sworn evidence, inferences which he had formed of the scene, and because the defence was not given the opportunity to counter the inference that there had been tampering with the gate either by evidence or argument the verdict was unsafe. The court reversed the conviction and ordered a new trial.

57. The circumstances in the instant case are quite different from those in Kristoff v R [1967– 68] PNGLR 415. No application was made by the State or defence, nor did the trial judge inform counsel that he intended to view the scene. Instead His Honour viewed the scene alone.

58. Here we note from the transcript that His Honour simply chanced by the service station on one of his morning walks and made some observations as to the layout of things including a water tap at the back of the Service Station which he then posed to the witnesses and counsel during the trial.

59. We do not believe that His Honour went prying into the premises, but that what he observed was observable by anyone walking pass the Service Station.

60. We must say, however, that a trial judge should refrain from visiting a crime scene alone, even if the scene is conspicuous and open to public view, let alone, bring his observations to the attention of the parties where they were not present when he visited the scene. If he forms an opinion that it is desirable and/or necessary to visit the scene, then it must be done openly and in the presence of both the prosecution and the defence.

61. A criminal trial is a serious matter where the liberty of the accused hangs in the balance, and therefore a trial judge must ensure that he does not go on a frolic of his own or inform himself of matters which are unclear from the evidence without inviting the parties to the scene, if he so decides to visit the scene.

62. While a trial judge has the discretion to visit a crime scene, such discretion must be exercised on proper principles with the view of according an accused person a fair and impartial trial so that at the end of the day justice is not only done but seen and believed to have been done.

63. Coming back to the instant case, while His Honour may have been unwise in visiting the scene (however casually) without the parties, we are of the view that the verdict turned neither on His Honour's observations of the crime scene, nor on any perceived undue participation by him in the trial, but principally on the conduct of the Applicant, and His Honour’s treatment and assessment of the circumstantial evidence before him. As we have said above, his treatment of the evidence and his application of the relevant principles cannot be faulted.

64. We therefore find no error there and so this ground should also be dismissed.

Miscarriage of Justice

65. Based on what we have said and considered we find that in the circumstances there was no miscarriage of justice.

CLEAR GROUNDS MERITING A REVIEW

66. Given these, there are no clear grounds meriting a review.

ORDER

67. All things considered we find no error in the trial judge's judgment, the application for leave to review is refused, and so we dismiss the review and confirm the conviction.

Orders accordingly
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L. B. Mamu, Public Solicitor: Lawyers for the Applicant
P. Kaluwin, Public Prosecutor: Lawyers for the Respondent