[2000] PNGLR 204

PAPUA NEW GUINEA

[national court of justice]

THE STATE

v

andrew aisa keake

waigani: kandakasi j
15 November 2000

Criminal Law — Practice & Procedure — Application for leave to call additional witness — Notice of Intention to call additional witness given on day of trial — Application made at commencement of State case — Need to get all relevant and admissible evidence in — Fair trial within meaning of s 37 of the Constitution means to ensure all relevant and admissible evidence is adduced — Non-compliance of Criminal Practice Rules not detrimental — Court has power to supply lack or inadequacy in the rules — Court has power to call witnesses for just decision — Order 4 Rule 9 — Criminal Practice Rules 1987.

Facts

The matter came on for trial on a charge of wilful murder. At the opening of the State’s case, Mr. Umpake for the State applied for leave to add an additional witness. This witness was considered vital for the State’s case but was inadvertently omitted from the list of witnesses. That evidence would touch on the defendant’s claim of the deceased committing suicide and the manner of the defendant’s presentation and appearance at the village where the defendant claims to have informed the deceased’s parents of the deceased committing suicide. That emerged from the record of interview. The record of interview was already in evidence with the defendant’s consent as Exhibit "C1" and "C2" being the Pidgin and English versions respectively.

Held

1.	The court has a constitutional duty under ss 155 and 158 to exercise the judicial powers of the people of Papua New Guinea once all the relevant, admissible and available evidence is properly adduced and is before the court. The State v Birch [1978] PNGLR 79 adopted. 

2.	A non-compliance of the practice rules should not operate as an end in themselves, if the non compliance does not result in any serious prejudice to the other party or the effect of the non compliance can be easily overcome without any serious prejudice or injustice occasioned to the other side.

3.	The need to get all the relevant and admissible evidence in before proceeding to determine the guilt or otherwise of an accused person is paramount to accord a fair trial to an accused person and at the same time serve the community interest of arriving at the truth on the basis of all the relevant and available evidence. That is why there are provisions like that of Order 4 r 9 of the Criminal Practice Rules 1987.

Papua New Guinea cases cited

Abiari v The State [1990] PNGLR 250.
Arthur Ageva & Ors v Bobby Gaigo & Ors [1987] PNGLR 12.
Lamuo Timon as next friend for Fred Timon v Robert Laurie Co Pty Ltd [1990] PNGLR 120.
The State v Birch [1978] PNGLR 79.
The State v Misarah Waraun [1988-89] PNGLR 327.

Other cases cited

Re: Coles & Ravenshear [1907] 1 KB 1. 

Counsels

K Umpake, for the State.
P N’dranoh, for the defendant.

15 November 2000

Kandakasi j. This matter came on for trial before me yesterday on a charge of wilful murder. At the opening of the State’s case, Mr. Umpake for the State applied for leave to add an additional witness. That witness he said, was vital for the State’s case but was inadvertently omitted from the list of witnesses. That witness’ evidence would touch on the defendant’s claim of the deceased committing suicide and the manner of the defendant’s presentation and appearance at the village where the defendant claims to have informed the deceased’s parents of the deceased committing suicide. That emerged from the record of interview. The record of interview is already in evidence with the defendant’s consent as Exhibit "C1" and "C2" being the Pidgin and English versions respectively.

The defendant through his counsel, Mr. N’dranoh, objected to that witness being added, on the basis that it will be prejudicial to the defendant and will amount to an unfair trial, a trial by ambush and an abuse of process which will amount to a breach of the defendant’s right to a fair trial under s 37 of the Constitution. As neither of the counsel was able to assist the court with any case law or any other authority on point, I adjourned the application of the State initially to 1:30 p.m. yesterday and thereafter to this morning. At the resumption of the case today, both counsels referred the court to cases, which could indirectly assist the Court.

Mr. Umpake referred to the case of The State v Birch [1978] PNGLR 79. Although that was a case, which concerned the extent to which a court can intervene in questioning and calling witnesses, it does offer some assistance. The following passage per Greville Smith J. at page 93 is helpful:

"A criminal trial involves more than the interests of the accused person; it involves also the interests of the community and justice and fairness between the accused and the community. This can be best served by the court having before it in the end as far as is possible the relevant and admissible evidence. And I do not think that any number of individually unexceptionable attempts by a Court to assist toward the realization of this ideal situation could ever properly be regarded as giving an appearance of unfairness to an accused, especially at a point not at the end of the trial but at the end only of the prosecution case and before the defence case, even where, as here, the next result at that point was a strengthening of the prosecution case."

That case also commented on the then equivalent of our present Order 4 r 9 of the Criminal Practice Rules 1987. At page 97 of the judgement the Court said:

"Section 30 of the Criminal Procedure Act of 1889 (N.G.) provides in effect that it is lawful for a judge of the National Court at any stage of a trial to summon and examine any witness whose evidence he shall consider essential for a just decision.

Section 30 also provides in effect that a judge may examine as a witness any person who may be within the precincts of the court, although such person may not have been bound over or summonsed to attend as a witness or may not be willing to give evidence…

In my view both [similar New South Wales provision and s 20] provisions are, so far as they go, merely declaratory of the inherent powers of the court which include the power to obtain documents actually in court in the absence of notice to produce, or consent, and, save in case of allowable exceptions, to deliver them to the prosecution." 

(emphasis supplied)

Mr. N’dranoh referred the court to the case of the The State v Misarah Waraun [1988–89] PNGLR 327. The case however, concerned the way in which evidence can be adduced. With agreement of Mr. N’dranoh, that case is not relevant for the matter at hand. The other case Mr. N’dranoh referred to was Abiari v The State [1990] PNGLR 250. That case concerned "fresh evidence" and Mr. N’dranoh conceded that it was not relevant. Nevertheless the case does demonstrate that, as long as the evidence is relevant and admissible and if the court considers "it necessary or expedient in the interest of justice to do so", admit such evidence.

The court asked Mr. N’dranoh to specify how his client will be prejudiced if the proposed additional State witness was allowed to give evidence but he failed to assist the court with any specifics. He only argued that, the evidence that witness may give may have been fabricated and or it may have lost its contemporaneousness and its cogency. That argument however, goes to what weight should be given to the evidence once admitted, subject to the usual tests as to its admissibility and the normal process of cross examination. I therefore, fail to see how it will prejudice the defendant.

In relation to the defendant’s argument that, the calling of the additional witness will amount to an unfair trial, trial by ambush and it will be an abuse of process, and therefore, amount to a breach of the defendant’s Constitutional right, again. Mr. N’dranoh failed to demonstrate how that will be the case when his client’s right to hear the witness testify against him, cross examine the witness and get the opportunity to call such evidence as he considers appropriate to rebut the evidence of that witness in particular or that of the State generally at the appropriate time, are still there and have not been exhausted yet. Of course, if he requires more time because of the short notice and after the passage of a long time up to date of trial, an adjournment would take care of that. His constitutional right to a fair trial has been recognized and will continue to be recognized throughout the trial of this matter up to a decision as to his guilt or innocence and sentence, if need be. The question of guilt or innocence can only be decided once all the relevant and admissible evidence is correctly before the court. There can be no "fair hearing" within the meaning of s 37(4) of the Constitution unless, all the relevant, available and admissible evidence is brought into court. Thus, in my view, allowing all relevant and admissible evidence to be brought into court is within the meaning of a "fair hearing" in s 37(4) of the Constitution.

To the extent that the defendant has not been given any prior notice of the State’s intention to call the additional witness, it may amount to a trial by ambush. However, that concern can be met by giving such time as the defendant considers he needs to prepare his case and present it when he is ready. He will still have the opportunity to cross-examine the witness, and call any evidence in rebuttal of the additional witness’ evidence, if he wishes to.

In his arguments, Mr. N’dranoh argued that, O 1 r 6(c) of the Criminal Practice Rules 1987 accords well with the provisions and the right guaranteed by s 37 of the Constitution. He then argued that, a non-compliance of that rule should result in the additional witness being ruled out. I asked him to point to me any authority supporting his proposition but he was unable to do that.

There is no provision in the Criminal Practice Rules 1987, on that issue. Section 185 of the Constitution empowers this Court to "give ad hoc directions to remedy the lack of inadequacy." In Arthur Ageva & Ors v Bobby Gaigo & Ors [1987] PNGLR 12, the Supreme Court considered that provision and upheld a decision of the National Court dismissing an appeal from the Land Titles Commission to the National Court, for want of prosecution having regard to the rules and or practice in relation to appeals from the National Court to the Supreme Court, in the absence of any prescribed practice and procedure.

Doherty AJ (as she then was) in Lamuo Timon as next friend for Fred Timon v Robert Laurie Co Pty Ltd [1990] PNGLR 120, applied s 185 of the Constitution to allow for a payment into court an ex gratia payment for the benefit of the infant.

In the case before me, I adopt the approach of the courts in the above cases, and direct that the rules and practice before the National Court in its civil jurisdiction be adopted and applied to meet the lack or inadequacy in the Criminal Practice Rules 1987 on the question of non compliance of the Criminal Practice Rules 1987 and what consequence should follow. The relevant provision is O 1 rr 7 and 8 which read:

7.	Relief from Rules (1/12)

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion of compliance arises.

8.	Non-compliance with Rules not to render proceedings void

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and upon such terms, as the Court thinks fit.

In Anthony John Polling v Motor Vehicles Insurance Trust & Anor [1986] PNGLR 228, at pages 230-231 Wilson J. said:

"As has been noted before, the Rules of Court are a code of practice and there is no doubt that where justice so requires strict adherence to the Rules can be dispensed with in the circumstances of a particular case…"

His Honour then adopted the following passage from the case of Morres v Papuan Rubber and Trading Co. Ltd (1914) 14 SR (NSW) 141 at 143-144.

"Now, I am equally satisfied that the Court has power to act, where justice requires, in the way of permitting the prosecution of an appeal notwithstanding default in compliance with the rule of serving the notice of motion upon the other side. I think that s.16 of the Supreme Court Procedure Act, No. 49 of 1990, enables the Court to allow the prosecution of an appeal notwithstanding default in the service of that notice. And it is extremely desirable that the rules should not be allowed to stand in the way of serving the interests of justice. If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the Court should relax it. As was said by the Master of the Rolls in the case of Re: Coles & Ravenshear [1907] 1 KB 1 at 4, ‘Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedures, as to be compelled to do what will cause injustice in the particular case.’ But when a party, who has neglected to observe those requirements which the rules place him under for protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules. If a rule is one merely regarding a matter of detail in which the other party can be placed in as good a position as if the rules had been complied with, then in regard to such matters of detail the Court ought not to be very strict, because, the main purpose to be served being the carrying out of the particular proceeding, the mere matter of details ought not to stand in the way of that purpose being served. But where it is a matter which definitely affects the right of the party, then although the Court has full power to condone the breach of the rules, it would require to see that the object to be served is one that justice really requires under the particular circumstances".

On its part, Wilson J. said:

"… I find much commonsense and fairness in those comments. In particular I adopt as criteria for guidance in such application the interests of justice in the particular case and the proposition as to whether in reality the other party is in as good a position as if the rules had been complied with, or to put it another way, whether the party has been disadvantaged in regard to its rights in the matter."

The above comments and or observations in my view, apply equally to a criminal case in the interest of doing justice. Accordingly, a non-compliance of the practice rules should not operate as an end in themselves, if the non compliance does not result in any serious prejudice to the other party or the effect of the non compliance can be easily overcome without any serious prejudice or injustice occasioned to the other side.

The need to get all the relevant and admissible evidence in before proceeding to determine the guilt or otherwise of an accused person is paramount to accord a fair trial to an accused person and at the same time serve the community interest of arriving at the truth on the basis of all the relevant and available evidence. That is why we have provisions like that of O 4 r 9 of the Criminal Practice Rules 1987, to enable a court to call such witness as it considers necessary and appropriate in appropriate cases so that a just decision can be arrived at the end.

I adopt and re-iterate the words of Greville Smith J. quoted above in The State v Birch (supra) and add that this court has a Constitutional duty to exercise the judicial powers of the people of Papua New Guinea: see ss 155(1)(b) and 158(1) of the Constitution. That duty can properly be exercised once all the relevant, admissible and available evidence is properly adduced and is before the court. Therefore, a non-compliance of the rules should not be allowed to step in the way of otherwise properly receiving relevant and admissible evidence.

This court is fully cognizant of the fact that an accused person is entitled to a fair trial. That means he must be given ample opportunity to test the case against him in the normal way by way of a trial and before that, he must be given ample opportunity to prepare his defence and come into court and present it. At the same time, this court is mindful of the fact that, any party before a court should not be shut out from putting into evidence all the evidence he proposes to adduce, unless it is inadmissible for whatever reasons, to allow for a just decision.

Having regard to all of the above, the State is granted leave to call its additional witness. The defendant will of course be entitled to object to any part of that witness’s evidence if they are inadmissible for whatever reason. He will also be entitled to hear the witness testify against him and cross-examine him. If the defendant requires more time to prepare and present any evidence in rebuttal specifically of the additional witness’s evidence, he will readily be granted an adjournment.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.