N776

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ROBERT WER AND OTHERS

Mendi
Brunton AJ
19 October 1989

CRIMINAL LAW - Practice and procedure - Leave to adduce alibi evidence - Where prescribed notice not given - Discretion to admit - Relevant considerations - Constitutional rights to fair trial etc - Weighing of prejudice to accused and justice - State case concluded - Leave granted - Criminal Practice Rules 1987, O 4, r 4.

The Criminal Practice Rules 1987, O 4, r 4, provides that an accused shall not, without leave of the court, adduce evidence of an alibi unless notice in respect of prescribed matters is first given to the prosecution within specified time limits.

On an application by an accused to adduce evidence of an alibi without notice and following the close of the State case on an indictment for wilful murder,

Held

(1) The discretion of the court under O 4, r 4, of the Criminal Practice Rules is to be exercised judicially. The mere fact that the necessary information was not given within the prescribed period does not, of itself, as a general rule, justify the court in refusing permission for the evidence to be called.

R v Sullivan [1970] 2 All ER 681, adopted and applied.

(2) Matters relevant to the exercise of the discretion include:

(a) whether the exercise of the discretion would accord favourably with the accused’s constitutional rights under s 37(3) and s 37(4)(f) of the Constitution, to give evidence, to call witnesses and to a fair hearing;

(b) whether, if the discretion is exercised the prejudice to the accused would outweigh the prejudice to the public interest in seeing offenders brought to justice.

(3) In the circumstances, leave should be granted to the accused to adduce evidence of an alibi, subject to the service of notice out of time, and allowing the prosecution such adjournment as was appropriate in order to enable the police to investigate the alibi in accordance with O 4, rr 4 to 8, of the Criminal Practice Rules.

Cases Cited

R v Sullivan [1970] 3 WLR 210; [1970] 2 All ER 681.

Trial

On the conclusion of the case for the prosecution on a trial for wilful murder, counsel for the accused sought leave to introduce evidence of alibi without notice having been given pursuant to O 4, r 4, of the Criminal Practice Rules 1987.

Counsel

B B Poyia, for the State.
K A Wogaro, for the accused.
Cur adv vult

19 October 1989

BRUNTON AJ: The accused are indicted for wilful murder. At the close of the State case, defence counsel indicated he would call each accused who would give sworn testimony. He said that the defence case was a denial that the accused killed the deceased, and that they were around the village at the time of the offence, that is, they were somewhere else other than at the scene of the crime. The defence had not served a notice of alibi in accordance with the Criminal Practice Rules 1987, O 4, r 4, on the State. Quite properly, Mr Wogaro agreed that the evidence he sought to call amounted to an alibi within the means of O 4, r 8, which, in part, reads:

" ‘evidence of alibi’ means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission."

Accordingly, Mr Wogaro agreed that the accused fell within O 4, Div 2 — Notice of Alibi of the Criminal Practice Rules 1987, and that they had not complied with the Rules. The Rules state:

"Division 2 — Notice of Alibi

4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice:

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person."

Mr Wogaro then applied for leave to adduce evidence of an alibi out of time, stating that he had only obtained the instructions of his clients a day before the trial started and that he had hoped the procedures would be waived.

The State Prosecutor, Mr Poyia, submitted that the accused were bound by the Rules, and their lawyer should have been aware of the time limitations. The State had closed its case, and had not had an opportunity to call witnesses to rebut the alibi. The State was prejudiced, submitted Mr Poyia.

The discretion of the Court under O 4, r 4, of the Criminal Practice Rules 1987 is to be exercised judicially. The mere fact that the necessary information was not given within the prescribed period does not, by itself, as a general rule, justify the Court in refusing permission for the evidence to be called: see R v Sullivan [1970] 2 All ER 681. This was a rule of the common law in the United Kingdom before Independence. It is a rule based upon the broad principles that discretions are not to be exercised capriciously or emotionally, but are subject to reason, to legal principle, to judicial precedent and to general principles of justice and morality. It is also based upon the broad principle that in a criminal trial persons shall be allowed to defend themselves and call evidence in support of their cases. In constitutional terms the rule may be based upon s 37(4)(f) of the Constitution which in essence reads:

"37(4) A Person Charged with an Offence

(f) shall be afforded facilities ... to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution."

I will not address the issue of whether, because O 4, r 4, of the Criminal Practice Rules 1987 only applies to alibis of the accused, the accused cannot be said to have been afforded facilities "on the same conditions as those applying to witnesses called by the prosecution"; that is, because the alibi rules only apply to persons charged with an offence they must necessarily be unconstitutional: see s 34(4)(f) of the Constitution.

Accordingly, the rules in R v Sullivan are applicable and appropriate to the conditions of Papua New Guinea and should be applied as part of the Underlying Law: Constitution, Sch 2.2. In this particular case they do not conflict with custom.

What then are the principles which should guide the exercise of the discretion in O 4, r 4, of Criminal Practice Rules 1987 to grant leave, when the accused has not otherwise complied with the Rules?

CONSTITUTIONAL RIGHTS

The accused not only have a constitutional right to give evidence themselves and to call their witnesses under s 37 (4)(f) of the Constitution, they also have a right to a fair hearing under s 37(3). A hearing in which one side or the other was denied the opportunity of calling evidence, unless there is some very good reason for doing so, is on its face most unfair. Therefore, to exercise the discretion so that it accords favourably with the accused’s constitutional rights is an important matter of principle.

BALANCING THE PREJUDICES

As a matter of general principle, and in the civil law, a discretion may be guided by asking the question: if the discretion is exercised, who will be prejudiced the most, and who will be prejudiced the least? That question will be produce different answers if the offence charged is less serious, as against an accused facing a more serious offence. The prejudice facing an accused on an offence the maximum penalty for which is two years imprisonment, and the average sanction a good behaviour bond, is less than the prejudice facing an accused for an offence where the maximum penalty is life imprisonment, and a medium sentence is 10 to 12 years in gaol. In the same way the State may also be prejudiced, or perhaps more accurately the public interest in seeing offenders properly brought to justice may be prejudiced. The public interest may be identified not only in the bringing of offenders to justice, but also in the cost of the trial process upon the public purse, and the efficient operation of the court as an instrument of justice.

APPLYING THE FACTS TO THE PRINCIPLES

This is a trial for wilful murder. If convicted the accused stand to go to gaol for a long time. The State case is completed, and a prima facie case has been established, so that if the trial were closed now, without the taking of any evidence from the accused or their witnesses, there is sufficient evidence for the tribunal of fact, properly instructed to convict. The accused could be convicted, as distinct from would be convicted.

Whether or not the accused are allowed to go into evidence has become crucial to the determination of the case. If they are denied the opportunity of presenting evidence, of telling their sides of the story, not only may there be a violation of their right to a fair hearing (s 37(3) of the Constitution), of their right to give evidence themselves and call witnesses (s 37(4)(f) of the Constitution), but in the context of a trial for one of the most serious offences in our criminal law, ordinary people could well say — "that is just not fair" — justice has not been done.

But against the rights of the accused, there are the Criminal Practice Rules 1987. They make it very clear that when an accused person relies on a defence by alibi, then proper notice must be given. That is the law: O 4, r 4 and r 5. These Rules ensure that the State is not caught by surprise, and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer.

On the one hand, there are the interests of individuals, the interest of the accused, the right to a fair trial, and the right to have one’s day in court. On the other hand, there is the public interest in the lawful and proper prosecution of offenders. Further, the public have an interest in the economic and efficient operation of the criminal justice system, and the courts.

To allow the defence time to prepare and serve the notices required by the Rules, and to allow the State time to investigate the alibi and gather together any witnesses it may need to disprove the alibi will cause delay to the trial, and add extra expense in the overall costs of the court. It will mean that this case will go part-heard. The Court and the lawyers will go back to Port Moresby, or to the other parts of the country where they live, and two or three months later they will have to come back to Mendi to finish the trial. This will impact upon the public purse.

Against this, to refuse the application is likely to place the accused in jeopardy of being convicted, and having them sentenced to a lengthy period of imprisonment, without the chance of them putting their case in evidence. There is some chance that if this happens, there may be an appeal to the Supreme Court, which adds additional expense to the overall process.

Putting aside the question of possible appeal and its costs, the rights of the accused, in the circumstances of this case, must prevail over the costs and inconvenience to the Court. Yes, extra costs will be incurred, and there will be delay if the application is granted, but that is far outweighed by the rights of the accused, and the public interest in seeing this trial completed properly and lawfully.

The Court orders that leave be granted to the accused to adduce evidence of an alibi, subject to the service of notice out of time and allowing the prosecution such adjournment as is appropriate in order to enable the police to investigate the alibi in accordance with O 4, rr 4 to 8, of the Criminal Practice Rules 1987. Although the lawyers know this, it is appropriate to warn the police, that they are not allowed to question the accused in the course of investigating the alibi, as that could prejudice the trial.

The real problem with this application is that Mr Wogaro of the Public Solicitor’s Office did not get to Mendi until the day before the circuit started. He did not interview the accused for the purpose of taking instructions (on his own admission) until the day before the trial began. That is not good enough. The failure of a lawyer, in a major case — wilful murder with multiple offenders — adequately to prepare his case, including the meeting of time limitations imposed by the Criminal Practice Rules, not only has the potential of prejudicing the client, but actually causes serious inconvenience to the Court. It then becomes open to form the view that the lawyer is in breach of duty either to the client or to the Court. Potential arguments that the Public Solicitor’s Office is under-resourced have to be reconciled with s 225 and s 23 of the Constitution.

This case is adjourned to a date to be fixed. The accused are remanded in custody.

Adjournment granted

______________

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