Hiviki v Augerea [2024] PGSC 45; SC2582 (28 May 2024)

SC2582

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 1 OF 2024

KEPAS HIVIKI
Applicant

V

IAN AUGEREA, REGISTRAR
OF THE NATIONAL COURT AND THE SUPREME COURT
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

RAPHAEL LUMAN, ACTING PUBLIC PROSECUTOR
Third Respondent

Waigani: Cannings J
2024: 23^rd, 24^th, 28^th May

HUMAN RIGHTS – rights of prisoners to full protection of the law and to have conviction reviewed by a higher court, Constitution, ss 37(1), 37(15) – whether difficulties in preparation of an appeal book caused by missing exhibits amounts to breach of constitutional rights.

The applicant is a prisoner who lodged an appeal against his conviction. He claimed that he faced difficulty when compiling an appeal book as some of the exhibits admitted into evidence in his National Court trial were missing. He claimed that the Registrar of the National Court and the Supreme Court (the first respondent) had failed to perform his duty to ensure safe custody of all exhibits admitted into evidence and as a consequence he was denied his right to the full protection of the law and his right to have his conviction reviewed by a higher court under ss 37(1) and (15) of the Constitution. He sought a declaration as to breach of his constitutional rights, damages and orders deeming his Supreme Court appeal to have been determined in his favour and his conviction and sentence to be quashed and an order for his discharge from custody.

Held:

(1) The missing exhibits were few in number and the fact that they were missing did not appear to materially prejudice the applicant in his capacity to prosecute his appeal to the Supreme Court.

(2) The significance of the missing exhibits is a matter that can be raised at the hearing of the appeal.

(3) There was no denial of the applicant’s right to the full protection of the law or his right to have his conviction reviewed by the Supreme Court.

(4) The application for a declaration as to breach of constitutional rights and all consequential relief was refused.

Cases Cited

Application by Benetius Gehasa (2005) N2817
Commander of Beon Correctional Institution v Mal (2022) SC2186
The State v Tamate (2021) SC2132

Counsel

D Dusal, for the Applicant
M Hane-Nou, for the First Respondent
T Kametan, for the Third Respondent

28^th May 2024

1. CANNINGS J: The applicant, Kepas Hiviki, is a prisoner at Bomana Correctional Institution serving a 20-year sentence for wilful murder. He has lodged an appeal against his conviction, SCRA 1 of 2021, which has yet to be heard.

2. He claims that his appeal cannot properly be heard as he and his lawyers have faced difficulty when compiling an appeal book as some important exhibits admitted into evidence in his National Court trial are missing.

3. He claims that the Registrar of the National Court and the Supreme Court (the first respondent) has failed to perform his duty to ensure safe custody of all exhibits admitted into evidence in his National Court trial.

4. He claims that as a consequence he is being denied his right to the full protection of the law and his right to have his conviction reviewed by a higher court under ss 37(1) and (15) of the Constitution.

5. He makes an application for enforcement of those constitutional rights. He seeks:

1. a declaration as to breach of his constitutional rights;
2. damages;
3. an order deeming the Supreme Court appeal to have been determined in his favour;
4. an order quashing his conviction;
5. an order setting aside his sentence;
6. an order for his discharge from custody;
7. costs; and
8. any other order the court deems fit.
   

6. When I first gave directions for the hearing of the application I expressed the view that it should be heard before the full court of the Supreme Court. However, on reflection, I decided that I could hear the application in my capacity as a single Judge of the Supreme Court in accordance with Order 6 rule 1 of the Supreme Court Rules 2012, which states:

An application to enforce constitutional rights under Constitution, s 57, shall in the first instance, if not made in the National Court, be made to a Judge.

PRIMARY ISSUE

7. The primary issue is whether the applicant has proven any actual or imminent breach of his constitutional rights. Only if he proves that, would serious consideration be given to granting a declaration to that effect (Application by Benetius Gehasa (2005) N2817).

8. Only if a declaration as to breach of constitutional rights were granted, would serious consideration be given to whether all or part of the consequential relief (damages etc) should be granted. If that point were reached, restraint would need to be exercised due to recent statements by the Supreme Court in The State v Tamate (2021) SC2132 and Commander of Beon Correctional Institution v Mal (2022) SC2186 that enforcement of constitutional rights under s 57 of the Constitution should not interfere with the conventional processes and procedures of the criminal justice system.

THE APPLICANT’S CASE

9. The applicant has obtained a transcript of the National Court trial. He argues that it is apparent from the transcript that the documents and things admitted into evidence as exhibits at the trial were as follows:

exhibit A – record of interview dated 22 February 2013
exhibits B1-B67 – photographs of crime scene
exhibit C – statement of Senior Constable Samuel Koi (police photographer) dated 4 February 2013
exhibit D – statement of Sergeant Joseph Numbos (police firearm expert) dated 24 December 2012
exhibits D1-D6 – photomicrographs
exhibit D7 – projectile retrieved from victim
exhibits D8-D18 – 11 bullet casings
exhibit D19 – bullet fragment removed from victim
exhibit E – indemnity receipt dated 8 December 2012
exhibit F – committal court order dated 17 May 2013
exhibit G – indemnity receipt dated 21 May 2013
exhibit H – autopsy report by Dr Seth Fosse dated 12 December 2012
exhibit I – statement of Senior Constable Vincent Tapungu (police forensic officer) dated 8 January 2013
exhibit J – sketch of crime scene by Senior Constable Tapungu
defence exhibit 1 – printout from ZD industries.

10. He and his lawyer, Mr Dusal, have given evidence that in the course of preparing the appeal book, upon requests being made to Registry officials in the Supreme Court and the National Court to conduct further searches of the records, it was discovered that the following exhibits are not in the custody of the Court and are missing:

exhibits B1-B67 – photographs of crime scene
exhibits D1-D6 – photomicrographs
exhibit D7 – projectile retrieved from victim
exhibits D8-D18 – 11 bullet casings
exhibit D19 – bullet fragment removed from victim
exhibit F – committal court order dated 17 May 2013
exhibit G – indemnity receipt dated 21 May 2013
defence exhibit 1 – printout from ZD industries.

11. Mr Dusal points out that the indictment dated 27 May 2013 is also missing.

12. As to the missing indictment, this is unfortunate but there is nothing I can see in the notice of appeal that makes an issue of the wording of the indictment. It is clear that it was an indictment presented under s 526(1) of the Criminal Code after a refusal by a District Court to commit the applicant for trial. Any problems arising from a continuing failure to locate the indictment can be addressed in preparation of the appeal for hearing before the full court of the Supreme Court.

13. The Registrar agrees that some exhibits are missing, but not all of those regarded as such by the applicant. He relies on an affidavit of Victoria Belo, Assistant Registrar, Crimes, of the National Court registry, Waigani, who deposed that a recent search of the original National Court file for the trial revealed that three of the allegedly “missing” exhibits are available:

exhibits D1 to D6: coloured copies of photomicrographs
exhibit F: committal court order dated 17 May 2023 (annexure C to the affidavit of Remmy Jogioba, investigating officer, filed 10 April 2015 in CR 222 of 2014)
exhibit G: indemnity receipt dated 21 May 2013 (annexure D to the affidavit of Remmy Jogioba, investigating officer, filed 10 April 2015 in CR 222 of 2014).

14. The Acting Public Prosecutor, Raphel Luman, also agrees that some exhibits are missing but not all of those regarded as such by the applicant. He deposes in an affidavit produced for the hearing of this application that the following exhibits have been located and made available to the applicant’s lawyer:

exhibit B1-B67: 67 coloured photographs of the crime scene.

15. Mr Dusal submits that none of the material located by the Registrar and the Acting Public Prosecutor has been obtained from the official record of the exhibits required to be kept under Order 7 rules 30-32 of the Supreme Court Rules. These provisions, which comprise Division 7.10 (retention of exhibits) of the Rules, state:

30. Where an appeal from a judgment may lie by leave or without leave to the court, the officer of the National Court who has custody of the exhibits in the proceedings shall, unless the primary Judge otherwise orders, retain the exhibits—
    

(a) for 40 days after the date when the judgment is pronounced; or

(b) if within the period of 40 days leave to appeal to the court from the judgment is granted for a further period of 40 days.

31. Upon the filing of a notice of appeal—

(a) the Associate to the primary Judge shall make out and certify a list of exhibits; and

(b) the exhibits, the list and any other documents before the primary Judge shall be delivered to the registry.

32. Where an exhibit cannot be so delivered, the Associate shall in his certificate, state the circumstances and give such information as he can to enable the Registrar to cause the exhibit to be available at the court. The Registrar shall retain the documents obtained under Rules 30 and 31 until the disposal of the appeal and shall, subject to any direction by the court, return them to the persons from whom they were obtained.
    

16. Mr Dusal raises a valid point regarding exhibits B1-B67. The 67 coloured photographs of the crime scene are not sourced from the records of the National Court or the Supreme Court. But does that prevent them being included in the appeal book? Mr Dusal submits that it would be dangerous to rely on them due to the risk of contamination of the evidence.

17. I think this is a slight risk only, which can appropriately be managed by a statement in the appeal book pointing out that the coloured photographs do not emanate from the records of the court. Besides that, it seems that exhibits B1-B67 were actually only black-and-white copies of the coloured photographs. It seems from my cursory reading of the transcript that the coloured photographs were not actually admitted into evidence.

18. As to exhibits D1 to D6, F and G, these have all been located in the records of the National Court and I see no issue arising from them being included in the appeal book.

19. The result of my analysis of the allegedly missing exhibits is that the only exhibits that can be properly regarded as missing and not available for inclusion in the appeal book are these:

exhibit D7 – projectile retrieved from victim
exhibits D8-D18 – 11 bullet casings
exhibit D19 – bullet fragment removed from victim
defence exhibit 1: printout from ZD Industries (this is supposed to be annexure E to the affidavit of Remmy Jogioba, investigating officer, filed 10 April 2015 in CR 222 of 2014, but it is missing).

20. So, the missing exhibits are in fact few in number. The fact that they are missing does not appear to materially prejudice the applicant in his capacity to prosecute his appeal in the Supreme Court. The significance of the missing exhibits can be addressed by making an application to amend the grounds of appeal and by the making of submissions in the Supreme Court.

21. I agree that there has been an administrative lapse in adherence to the requirements of Order 7 rules 30 to 32 of the Supreme Court Rules. But the extent of the lapse does not force the conclusion that the applicant is being or will be denied the full protection of the law or that his right to have his conviction reviewed by the Supreme Court is being or will be denied.

22. No breach of constitutional rights has been proven. I therefore refuse to grant the declaration sought by the applicant. It follows that all consequential relief including the claim for damages and orders deeming the Supreme Court appeal to be determined in favour of the applicant and the quashing of his conviction and the setting aside of his sentence, is refused.

ORDER

1. All relief sought by the applicant in the further amended application filed 21 March 2024 is refused.
   
2. The proceedings are dismissed.

_____________________________________________________________
Millennial Legal: Lawyers for the Applicant
M Hane-Nou: Lawyer for the First Respondent
Public Prosecutor: Lawyer for the Third Respondent