Wera v State [2022] PGSC 147; SC2503 (16 December 2022)

SC2503

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 02 OF 2018

BETWEEN:
DANIEL DUALE WERA
Applicant

AND:
THE STATE
Respondent

Waigani: Toliken J
2022: 16^th December

PRACTICE AND PROCEDURE – slip rule – application for leave to make slip rule application – leave required - requirements for grant of leave to file slip rule application – requirements different from substantive application – application for leave to be filed within 21 days from date order disposing of appeal - whether application has high chance of success – application filed within time – applicant rehashing arguments made before full Court on appeal – no strong change of success – leave refused – Supreme Court Rules, Order 11 Rule 32.

Cases Cited:
Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Agiru v Kaiabe (2015) SC1412
Trawen v Kama (2010) SC1063
David Arore v John Warisan (2008) SC1030
James Marabe v Tom Tomiape & Anor (2007) SC856
Review Pursuant to Constitution; In the Matter of the Organic Law on the Nomination of Governor-General (2004) SC752
SCRA NO. 2 OF 2018; Daniel Duale Wera v The State (unnumbered and unreported judgment of 18 December 2019)

Counsel:
Applicant, in person
S Osembo, for the State

JUDGMENT

16^th December 2022

1. TOLIKEN J. Before me was an application for leave by Daniel Duale Wera (Applicant) to make a slip rule application pursuant to Order 11 Rule 32 of the Supreme Court Rules 2012 for alleged slips by the Full Court in our judgment in SCRA NO. 2 OF 2018; Daniel Duale Wera v The State (unnumbered and unreported judgment of 18 December 2019 per Kassman, Toliken, Bona JJ). I heard the application and reserved. This is my judgment.
   
2. The Applicant contends that the Court slipped when dismissing his appeal against his conviction on the February 2020.
   

BACKGROUND

3. The Applicant was tried and convicted for wilful murder on 22^nd February 2018 and sentenced to 30 years on 07^th March 2018. He lodged an appeal against his conviction. He advanced 4 grounds of appeal. These are briefly:
   
   • (1) Inadequate caution and misapplication of rules and principles of identification.

(2) The confessional statement, record of interview and voir dire were set aside by the trial judge and there was no basis of a conviction.
(3) The trial Judge erred in fact and law in reversing the burden of proof beyond reasonable doubt.
(4) Disregarding evidence that reduced the credibility and reliability of the identification evidence as stated above.

4. We heard his submission on 25^th June 2019, reserved and dismissed it. On 18 December 2019 the Supreme Court dismissed his appeal.
   
5. On 03^rd January 2020, the Applicant filed an application for leave to make a slip rule application pursuant to Order 11 Rule 32 of the Supreme Court Rules 2012.
   
6. On 20^th June 2020, the Applicant appeared before Makail J for directions wherein he applied for leave to amend his application. Even though the application for leave to amend was made outside 21 days of filing the leave, his application for leave to amend was nonetheless granted in the interest of justice.
   

ALLEGED GROUNDS OF SLIP

7. There are two main grounds on which the Supreme Court is alleged to have slipped. These can be summarized as follows:
   
   1. The Supreme Court failed to properly consider apparent inconsistencies in the evidence of State witnesses, viz; Nancy Kundiri, Wesley Bobby and Angela Wesley for if it did the Court would have found that they were not witnesses of truth.
      
   2. The Supreme Court slipped and misapprehended Ground 2 of the appeal which contended that the Confessional Statement, Record of Interview and Voir Dire were set aside by the trial judge and there was no basis of a conviction.
      

THE LAW

8. Order 11 Rule 32 of the Supreme Court Rules 2012 which provides for slip rule applications relevantly provides:

(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A 'slip rule' application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A 'slip rule' application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed. (Underlining supplied)

9. The principles governing slip rule applications are settled and had been crystallized in this jurisdiction by a long string of authorities including Richard Wallbank and Jeanette Minifie v The State [1994] PNGLR 78; Review Pursuant to Constitution; In the Matter of the Organic Law on the Nomination of Governor-General (2004) SC 752; James Marabe v Tom Tomiape & Anor (2007) SC 856 to name a few.
   
10. Essentially, the Supreme Court has the discretion to correct its own mistake - a mistake affecting an unsuccessful party which should be seen to be a little short of extraordinary. However, the public interest in the finality of civil litigation must preclude all but the clearest "slip" error as a ground to reopen. (Wallbank v The State (supra). In SCR No 23 of 2004; Review Pursuant to Constitution; In the Matter of the Organic Law on the Nomination of Governor-General (supra), the Supreme Court held the slip rule was governed by six principles, these being:
    

(1) There is a substantial public interest in the finality of litigation.
(2) On the other hand, injustice, should, if necessary be avoided.

(3) The Court must have proceeded on a misapprehension of fact or law.
(4) The misapprehension must not be of the applicant’s making.
(5) The purpose is not to allow rehashing of arguments already raised.
(6) The purpose is not to allow new arguments that could have been put to the Court before.

11. To this, James Marabe v Tom Tomiape & Anor (supra) added a further principle, which is that "the Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law on a critical issue."
    
12. It must be noted, however, that these principles pertain to slip rule applications under the Supreme Court Rules 1984 which did not require leave to make a slip rule application. In Trawen v Kama (2010) SC1063, the Supreme Court in fact held that the very nature of a slip rule application precluded the necessity for leave.
    
13. The Supreme Court Rules 1984 have, however, since been superseded by the Supreme Court Rules 2012, Order 11 Rule 32 (3) of which provides that “unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.”
    
14. This therefore means that the principles governing leave applications under Order 11 Rule 32 (3) must necessarily be different from those governing actual or substantive slip rule applications themselves. To that end, I find guidance in what the Full Bench said in Agiru v Kaiabe [2015] SC 1412 (Salika DCJ, Mogish and Cannings JJ) at para. 10:
    

"Rule 32 is a new rule introduced by the Supreme Court Rules 2012. It has no equivalent in the repealed Supreme Court Rules 1984. We know of no other case in which the Court has been called upon to consider an application for leave to make a slip rule application."

15. The Court there then set the test for leave applications to make a slip rule application. It held that for an applicant to succeed in his leave application, he must necessarily meet two pre-conditions:
    

(1) He must file for leave within 21 days from the date of the dispositive orders

(2) He must satisfy the Court that the application will have a strong chance of success.

16. The Court there predicated the second principle on the criteria developed by Injia CJ in various cases dealing with applications for leave to review of decisions of the National Court in election petition matters, where for example, in David Arore v John Warisan (2008) SC1030, His Honour held that:
    

"... a strict standard of scrutiny is required to ensure that only applications which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant applies for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed."

17. The Court then went on to say at [12] that:
    

“ We consider that the standard of satisfaction must be set rather high to deter frivolous slip rule applications and to enforce the principle of finality in litigation, the importance of which has been highlighted in a long series of decisions dealing with slip rule applications, including Richard Wall bank and Jeanette Minified v The State [1994] PNGLR 78, Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC 752, James Marape v. Tom Tomiape & Anor (2007) SC 856 and Trawen v Kama and Laimo (2010) SC 1063."

18. I therefore adopt and apply the principles in Agiru v Kaiabe to the case at hand, guided by the principles of finality of litigation, and the need to deter frivolous and vexatious applications to discourage parties from rehashing arguments which they have made previously, which principles are central to the slip application. Of course, the court should be ever mindful that perfunctory refusal of leave may result in injustice to the applicant.
    
19. That notwithstanding, there are only two questions to be considered in an application for leave. These are:
    

(1) whether the leave application was filed within 21 days from the date of the judgment in question, and

(2) whether the applicant has satisfied the Court that he has a strong rate of success.

20. All the requirements pertaining to a slip rule application may only be considered when and if leave is granted. Hence at this juncture I am not concerned at all about merits of the application itself. All that I am concerned about is whether the prerequisites to grant leave have been shown by the applicant.
    
21. In deciding whether leave should be granted, it is my considered view that I need not delve into the merit or demerits of the alleged slip itself but rather, as happens in an application for leave for judicial review, merely take a cursory glance through the grounds relied upon by the applicant and decide whether the application has a strong chance of success.
    
22. I note that both the applicant and the State proceeded on misapprehensions on the principles governing leave to make a slip rule application. The applicant on his part set out correctly on the footing that his application was one of leave to make a slip rule application but then relied on the wrong principles and precedence to support his application. He cited the cases of Mark Bob v The State (2005) SC 808 (Salika J (as he then was), Cannings J, Gabi J) which was an application for review of conviction under Section 155 (4)(b) of the Constitution, and Stanley Kilip v The Independent State of Papua New Guinea (2021) SC2136 (David J) which was an application for bail after conviction and sentence. In both these cases the relevant principles are completely different.
23. On the other hand the State, relying on Kama v Trawen (supra), proceeded on the misconception that leave is not necessary.
    
24. Both parties therefore appear quite oblivious to the change of Rules which they both cited in the submissions and thus predicated their arguments as if they were arguing the substantive slip application itself.
    
25. That said, let me now consider whether the applicant has made out a case for grant of leave.
    

DETERMINATION

Whether the leave application was filed within 21 days

26. There is no issue that the application for leave was filed within 21 days after the Full Court dismissed the Applicant’s appeal. The appeal was dismissed on 19 December 2019. The Applicant filed his application for leave to file a slip rule application on 3 January 2020. The applicant did file an Amended Application outside of the 21 days after the decision of the Full Court, but leave was granted by Makail J in the interest of justice as the applicant is a self-represented prisoner.
    

Whether the slip rule application have a strong chance of succeeding

27. The Applicant essentially contended that the Full Court made two major slips. Firstly, the Full Court failed to properly consider apparent inconsistencies in the evidence of State witnesses Nancy Kundiri, Wesley Bobby and Angela Wesley. If it did, the Court would have found that they were not witnesses of truth. In particular the Applicant takes issue with and contends that the Court slipped in its treatment of the appeal on this point when at paragraphs 14 of its judgment the court said:
    

“14. We have examined the submissions from the Appellant and closely examined the evidence before the National Court and the trial judge’s reasons for accepting the identification evidence against the Appellant. His Honour applied the principles on assessment of identification evidence set out in the leading case of John Beng v. The State [1977] PNGLR 115, heeding the warning about the inherent dangers of relying on the correctness of identification to support the conviction. His Honour further cited the case of Luingi Yandasingi v. The State [1995] PNGLR 268 where the Court discusses the quality of identification and various factors that are needed to established that quality. Factors such as whether the witnesses knew the accused before the incident, the lighting conditions at that time, the distance between the witnesses and the accused and whether there are objects present which may have obstructed the view of the witnesses among others. After carefully reviewing the evidence and applying the principles and applying the principles alluded to, the learned trial Judge believed that State witnesses. They were honest and their demeanour was good. The learned trial Judge accepted the evidence of the State witnesses as truthful and credible and rejected the accused evidence as untruthful and not credible. The learned trial Judge emphasised that the three State witnesses were convincing. In that regard we are conscious of the superior position of the trial judge to assess the credibility of witnesses. See: Brian John Lewis v. The State [1980] PNGLR 219. The Appellant did not provide to us any valid reason to doubt the accuracy of His Honour’s assessment of their credibility. We find no error in His Honour’s treatment of the identification evidence. There is no insufficiency or inadequacy in the evidence regarding the presence and actions of the Appellant.

We dismiss ground (1).”

28. The Applicant contends that the court ought to have instead found that Ground 1 and part of Ground 3 of the appeal were not properly addressed by the trial judge. He contends that there were significant inconsistencies in the evidence of the three State witnesses which the Full Court ought to have found were not identified and assessed as to their significance and give reasons for regarding them as significant or insignificant.
    
29. Does this contention have any strong prospect of success if it were to be allowed to go to a substantive hearing? I do not think so. This is because we in fact addressed this very issue when addressing Ground 3 of the appeal. We said at paragraphs 18, 19, 20, and 21 that:
    

18. In any criminal trial, inconsistencies in the evidence of witnesses is sometimes present. The law in relation to inconsistent evidence is laid out very succinctly in the Supreme Court case of Glen Otto Kapahi v. The State [2010] 2 PNGLR 301 where the Court stated that the mere existence of inconsistencies in the evidence of State witnesses does not necessarily mean that the State’s case should be rejected. However, if there are inconsistencies the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

19. In this case, the learned trial Judge identified the inconsistencies as the presence or absence of a gold chain worn by the appellant around his neck, the clothes he was wearing, the appearance of the appellant whether he was light or dark skinned and whether he was bald or had hair on his head. The learned trial Judge was therefore aware of the inconsistencies but then went on to say that he did not find anything wrong with that as he further stated that in fights, people’s attention is not drawn to mini details like what he was wearing that day, whether he wore a gold ring or a silver ring or gold chain. The learned trial Judge goes on to say that people concentrate on the bigger picture and the bigger picture in this case was that the accused was the person who killed the deceased.

20. The learned trial Judge was also aware of the inconsistencies in relation to the appearance of the accused at the time of the incident and explained that the incident happened in 2014 and the trial was in 2015 and many things regarding appearance of the accused would have changed from how he looked like at the time of the incident.

21. In our view, the learned trial Judge identified the inconsistencies, assessed them and gave reasons as to why he did not regard them as significant and did not place much weight on them.

We are satisfied that the reasons His Honour gave are reasonable and logical and do not see any error on his part. We therefore dismiss Ground 3. of the appeal.

30. In my view, the Applicant’s contention here is at best a rehashing of arguments which he had advanced during the hearing of the appeal. And as I have already alluded to above, there is simply no way he can succeed if this ground were to progress to a substantive hearing. Leave should therefore be refused for this ground.
    
31. The Applicant’s second contention is that the Full Court slipped and misapprehended Ground 2 of the appeal which contended that the confessional statement, record of interview and voir dire were set aside by the trial judge and there was no basis of a conviction. The Court, so he contends, slipped when at paragraph 15 and 16 of its judgment the Court said:
    

Ground 2 was misconceived. At trial the appellant’s counsel objected to the tender of the Confessional Statement and the Record of Interview. This led to a voir dire hearing. After the police officers were called the learned trial judge realized that the grounds for the objection was that the confessional statement and the Record of Interview was fabricated by the police officers. The learned trial judge then vacated the appeal with these words “The issue of whether a Confessional Statement or a Record of Interview was fabricated or not is not an issue that goes to the admissibility or voluntariness of that particular document. It is a matter that a trial judge can consider in deciding whether to accept the evidence of the State witnesses or the accused in the trial. That is how I will deal with the aspect of the evidence – this aspect of the evidence.” The learned trial judge then admitted the evidence into the trial proper and considered it with the rest of the evidence at the trial after aborting the voir dire.

Although His Honour had some reservations about the manner in which the Police conducted their evidence and how the Confessional Statement and the Record of Interview were conduct, leaves a lot to be desired, nevertheless he was convinced beyond all reasonable doubt that the appellant struck the deceased with an iron bar on the head which eventually killed him. We find no error in His Honour’s actions in aborting the voire dire on the grounds explained above and accepting the evidence in the trial. Therefore we dismiss Ground (2).

32. The Applicant contends that the trial judge ought to have made a ruling on the evidence adduced during the voir dire before proceeding to the trial proper, or the evidence adduced during the voir dire hearing should have been addressed during the trial proper through the objection to the confessional statement and the record of interview was not an issue that goes to admissibility or voluntariness.
    
33. The Applicant further argued that after commenting that he had some reservation about the manner in which the police obtained the confessional statement leaves a lot to be desired, the learned trial Judge nonetheless proceeded to convict the applicant.
    
34. This argument implies that the trial judge did not admit, let alone, consider the alleged confessional statement and the Record of Interview. The fact that the trial Judge was not impressed with the manner in which these statements were obtained by the police, clearly implies that His Honour accepted them into evidence but obviously placed little or no weight on them. The Full Court held that trial judge was convinced beyond all reasonable doubt that the Applicant struck the deceased with an iron bar on the head killing him. Obviously, the conviction was not based neither on the confessional statement nor on any admissions in the Record of Interview.
35. I see no prima facie slip here on any point of law or on a misapprehension of pertinent facts, and none have been pointed out to me. Like the first ground, the Applicant’s contention and submission on this ground is a rehashing of his argument before the Full Court – an attempt to have a second bite at the cherry, so to speak.
    
36. In conclusion, I find that the applicant has not satisfied me that his application to file for a slip rule application stands a strong chance of succeeding, hence, leave is refused,
    

Ordered accordingly.
________________________________________________________________
Applicant in person
P Kaluwin, Public Prosecutor: Lawyer for Respondent