[1971-72] PNGLR 6

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

PEITSAKUNA

Port Moresby
Minogue CJ Clarkson Kelly JJ
29-30 October 1970

CRIMINAL LAW - Evidence - Trial - Admissibility of deposition taken at committal proceeding - Circumstances in which deposition admissible at trial - Criminal Procedure Ordinance 1889 (Papua, adopted), s. 31[iii]1 - District Courts Ordinance 1963-1965, s. 109[iv]2.

Section 31 of the Criminal Procedure Ordinance 1889 (Papua, adopted) is a general enactment relating to depositions taken in any proceedings and it is overridden in so far as it may relate to the use of depositions in committal proceedings by s. 109 of the District Courts Ordinance 1963-1965, the latter section being a particular enactment made subsequently to the general enactment by s. 31.

Statement in Halsbury’s Laws of England, 3rd ed., vol. 36, p. 468, par. 412, approved and applied.

Appeal

On 28th August, 1970, Amdjuonye Peitsakuna appealed against his conviction by the Supreme Court of the Territory of Papua and New Guinea (Prentice J.) at Menyama upon indictment charging him that at Aiupa village, on or about 4th February, 1970, he wilfully murdered one Kalitsulako. One of the grounds of the appeal was that a deposition taken at the committal proceedings was admitted at the trial without regard to the District Courts Ordinance 1963-1965, s. 109 (a).

Counsel

Broadley, for the appellant.
Gajewicz, for the Crown
.
30 October 1970

MINOGUE CJ CLARKSON KELLY JJ:  delivered the following joint judgment:
The appellant appeals against his conviction for the wilful murder of one Kalitsulako and his sentence thereon.

A number of grounds of appeal were taken on his behalf but in the result we find it necessary to deal only with the first of such grounds, namely, that the conviction is wrong in law in that the learned trial judge wrongly admitted into the evidence the deposition of one Gawi Lomtowa taken at the committal proceedings and did not take into account the provisions of s. 109(a) of the District Courts Ordinance 1963-1965.

We should immediately mention that neither counsel at the trial seemed to be aware of the existence of this section and the attention of the learned trial judge was not drawn to it. Some argument from the Bar seemed to suggest that the learned trial judge should be regarded as the repository of all the statute law of this Territory and that there was no duty in counsel to advise or assist him in the discovery of that law. This is an idea which should be scotched immediately. It is the duty of counsel to put before the judge all relevant facts and all the law, including statute law, which his researches have shown to be applicable to the case in hand.

The deposition of Gawi Lomtowa could be thought to provide evidence of the cause of death of the man whom it was alleged that the appellant wilfully murdered and, from a perusal of his judgment, it appears that the learned trial judge placed a good deal of reliance on this evidence in arriving at his conclusion that the deceased’s death was the result of a number of blows delivered by the appellant rather than from the single first blow after the deceased had struck at the appellant with his axe. It was obviously a material factor.

At the outset of the trial, counsel for the Crown sought leave to tender this deposition basing himself upon s. 31 of the Criminal Procedure Ordinance of 1889 (Papua, adopted). That section reads as follows:

“31.    The examination of any witness taken and attested by a Magistrate in the presence of the accused person on any occasion or under any circumstances may be given in evidence if the witness be dead or the Chief Magistrate be satisfied that for any sufficient cause his attendance cannot be procured. The attestation of the Magistrate shall be sufficient prima facie proof of such examination and such attestation shall be admitted without proof of the signature of the Magistrate unless the Chief Magistrate shall see reason to doubt the genuineness of the signature. Provided always that it shall be absolutely in the discretion of the Chief Magistrate to permit or forbid any such examination to be given as evidence.”

Counsel for the appellant objected to the reception of this deposition and argued that the judge in the exercise of the discretion given to him by the section should not admit it. After argument the learned trial judge ruled in favour of the Crown and admitted the deposition.

Section 109 of the District Courts Ordinance which was enacted in 1963 provides:

“109.   Where a person has been committed for trial for an offence, the deposition of a person taken before the examining court and purporting to be signed by the Magistrates constituting the court before which it was taken may, with the consent of the Supreme Court, be read without further proof as evidence on the trial of that first-mentioned person, whether for that offence or for any other offence arising out of the same transaction or set of circumstances as that offence upon proof:
(a)      that the witness is:
(i)       dead or insane;
(ii)      so ill as not to be able to travel;
(iii)     kept out of the way by means of the procurement of the accused or on his behalf; or
(iv)     a person registered under the Medical Ordinance 1953-1960 and cannot conveniently attend the court; and
(b)      either by a certificate purporting to be signed by the court or by one of the Magistrates before which or whom the deposition purports to have been taken, or by the oath of a credible witness, that the deposition was taken in the presence of the accused and that the accused or his counsel or solicitor or other person authorized by law to appear for him had full opportunity of cross-examining the witness.”

Of course if this is the section applicable there was no discretion in the Court to admit the deposition unless one of the matters set out in s. 109(a) (i), (ii) or (iii) was satisfied. So far as the evidence goes there was no suggestion that any of these matters was applicable. The information available to the Crown seems to have been that Gawi Lomtowa, who was a police constable first class, was on leave and counsel was unable to say whether he was at his own village in the Sepik or at his wife’s village in the Madang District.

Counsel for the respondent strenuously urged that s. 31 of the Criminal Procedure Ordinance and s. 109 of the District Courts Ordinance can stand together and that consequently the learned judge had a discretion which he had properly exercised. If this view be correct, s. 109 would be otiose. In our opinion this is not so. It seems to us that the principles are correctly set out in Halsbury’s Laws of England, 3rd ed., vol. 36, par. 712, p. 468 wherein it is stated that “to the extent that the continued application of a general enactment to a particular case is inconsistent with special provision subsequently made as respects that case the general enactment is overridden by the particular, the effect of the latter being to exempt the case in question from the operation of the general enactment”. Section 31 deals with depositions taken in any proceedings, on any occasion or under any circumstances and allows them to be used in any other criminal proceedings; s. 109 on the other hand is part of a code dealing with the committal of accused persons from a District Court to the Supreme Court and sets out the precise circumstances in which depositions taken on those committal proceedings may be tendered.

The conclusion to us seems inescapable that the legislature intended s. 109 to be an exclusive and complete statement of the circumstances in which a deposition can be used in a trial on indictment. Accordingly we conclude that the learned trial judge had no discretion to admit the deposition. We are further of opinion that had he not had this deposition before him in evidence it is unlikely that he would have reached, if indeed it was open to him to have reached, the conclusion that the deceased died as a result of a combination of blows, a finding which we consider to be critical.

We are conscious of the fact that this point was not taken at the trial but nonetheless we feel that in the circumstances of this case we should permit it to be raised on appeal.

Accordingly the appeal will be allowed and the conviction and sentence thereon quashed.

The question remains as to what consequential orders we should make.

We have given this matter earnest consideration and have decided that a new trial should be ordered. Because of the fact that there is to be a new trial we do not propose to set out the reasons which have led us to make such an order.

The order of the Court will be: appeal allowed, conviction and sentence quashed, appellant to stand his trial at the first sittings of the Supreme Court after November 1970 in the district in which the accused was formerly tried.

Appeal allowed. Conviction and sentence quashed.

New trial ordered.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.
Solicitor for the appellant: W. A. Lalor, Public Solicitor.

[iii]Infra, at p. 7.
[iv]Infra, at p. 8.