Haro v State [2019] PGSC 96; SC1841 (30 August 2019)

SC1841

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA N0. 5 0F 2017

HOBAI HARO
Appellant

-v-

THE STATE
Respondent

SCRA N0. 16 2017

LOLO BELLAMY
Appellant

-v-

THE STATE
Respondent

Waigani: Manuhu, Kariko and Anis JJ
2019: 29^th & 30^th August

SUPREME COURT – appeals against convictions – brief oral judgment on verdict – failure to publish full reasons

Cases Cited:

Coconut Products Limited v Markham Faring Company Ltd (2018) SC1717
Phillip Opa Kore v Charles Lapa (2018) SC1699
Sir Arnold Amet v Peter Charles Yama & Electoral Commission (2010) SC1064

Legislation:

Supreme Court Act

Counsel:

Appellants in person
Mr P Kaluwin, for the Respondent

JUDGEMENT

30^th August, 2019

1. BY THE COURT: These “prisoner appeals” are related. Both appellants were tried together with another co-accused in the National Court at Waigani on charges of three counts of aggravated rape each, convicted of the charges and sentenced on 2^nd February 2017 to 26 years imprisonment less pre-trial custody period. The appeals are against conviction only.
   

Decision appealed

2. At the commencement of the hearing of the appeals, the Court noted that the trial Judge gave a very brief oral judgement on verdict and informed parties that full reasons would be published later. Those oral reasons read at p.101 of the Transcript:
   

“This is my brief ruling on the decision on verdict. The full reasons will be published later on. The State – in this trial the State has established the guilt of all the accused beyond reasonable doubt. These they have done through the evidence of the complainant which I accept in its entirety. I do not accept the evidence of the accused persons. They gave evidence which contradicted the answers in the record of interview. They were evasive and untruthful witnesses. I accept the allegations put forward by the State which has been overwhelmingly supported by the evidence of the complainant.

I adopt the submissions by Mr. O’Connor which in my view sufficiently sets out the facts, the law and the conclusion. The facts which I accept and adopt are contained in the brief statement of facts presented to this court by Mr. O’Connor. The identification or recognition evidence of the complainant was very impressive. Though she had consumed coffee punch with friends five hours before the incident, it did not affect her evidence on who the perpetrators were and what they did to her. I find the accused – I find each accused guilty on all four counts of aggravated rape as principal offenders, aiders and procurer. That is the judgment of the court and as I have said, I will publish my full reasons later on.” (Our emphasis)

3. The Public Prosecutor confirms that the full reasons have not been provided.
   
4. In the circumstances, should the appeals proceed?
   

Consideration

5. It is established law that a trial judge has a duty to provide reasons for decision and secondly, if no reasons are given, the inference is that there are no good reasons for the decision; Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064; Phillip Opa Kore v Charles Lapa (2018) SC1699.
   
6. The Supreme Court observed in the case of Sir Arnold Amet v Peter Charles Yama (supra) at [14] regarding reasons for decision:
   

“The parties are entitled to it, more so for the parties in an appeal or judicial review application. The written reasons for decision will assist them to consider whether to proceed with or to defend the appeal or review. It will also assist the Appellate Court when it deliberates the grounds of appeal or review. So, the reasons for decision whether oral or published are an integral part of the appeal and review process.” (Our underlining)

7. The principles were again endorsed in Coconut Products Limited v Markham Faring Company Ltd (2018) SC1717. In that case, the Supreme Court stressed that the reasons for decision must be sufficient to assist the appellant prepare his grounds of appeal and for the respondent to defend the appeal. Further, the parties should be able to identify the issues borne out by the grounds of appeal.
   
8. In the present matter, the main issue on trial was identification which issue forms a critical ground of appeal. The trial Judge’s reasons for decision do not fully address assessment of the evidence in relation to that issue, the legal principles considered and how the law was applied to the facts. The appellants have also challenged other aspects of the trial including the medical evidence and the issue of alibi, but these matters are clearly not addressed in the oral judgement. We consider the reasoning of the trial Judge to be incapable of proper scrutiny on these appeals.
   
9. The Public Prosecutor concedes that the reasons on verdict are inadequate for the appeals to be properly argued and determined.
   
10. The inadequacy of the reasons is not a ground of appeal. However, this Court has raised it on its own motion. The interest of justice obligates us to do so in the exercise of our inherent jurisdiction to do justice. In our opinion, a breach of natural justice has occurred and that amounts to a miscarriage of justice.
    
11. We would allow the appeals on that basis.
    

New trial

12. Section 28 Supreme Court Act states that where a miscarriage of justice is found in relation to an appeal against conviction, the Court may order a new trial with conditions, and also consider bail for the appellant.
    
13. The predicament caused by the inadequacy of the reasons on verdict was explained to the appellants, who are unrepresented and filed their own appeals. In response, they insisted the Court hear their appeals as they have spent considerable time in custody awaiting their appeals. We are of the view that it would not be in the interest of justice to follow that course. To succeed on their appeals, the appellants would need to show errors of fact or law in the trial Judge’s decision. That would be difficult to do in the present case. Given the very serious nature of the criminal charges against the appellants and the allegation in respect of them, we believe it appropriate that the cases are tried again before another Judge of the National Court.
    
14. The appellants’ concern regarding time in custody may be addressed by considering bail for the appellants. We are not in the position to decide bail now as the parties should first file necessary affidavit material. The application may be pursued when the cases return to the National Court.
    

Order

15. The Court orders that:
    
    • (1) The appeals are allowed.
    • (2) The verdicts of guilty entered against the appellants on 8^th July 2016 in proceedings CR No. 488 of 2012 – The State v Lolo Bellamy and CR No. 488 of 2016 – The State v Hobai Haro, are set aside.
    • (3) The cases shall be re-tried in the National Court.
    • (4) The Registrar shall list the cases for mention at the next criminal list call-over of the National Court at Waigani.

________________________________________________________________
Appellants in-person
The Public Prosecutor: Lawyer for the Respondent