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State v Fancy [1994] PGNC 65; N1264 (7 September 1994)

N1264

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

THE STATE

-v-

STUART FANCY

WAIGANI: LOS,J
7 September 1994

J.Gah for State
I.Molloy for Accused

PRACTICE AND PROCEDURE - National Court - Application to Declare Mistrial - there must be a real likelihood of bias - Objection must not be frivolous or futile.

PRACTICE AND PROCEDURE - National Court - Pre-Trial Conference - Criminal Procedure Rules - Reading of Depositions enables identification of issues hence duration of trials decided - Reading of Deposition not threat to independence - Duty On Lawyers and Judge to make prior preparation to shorten trial on conspiracy.

PRACTICE AND PROCEDURE - National Court - Constitution requires accused tried within reasonable time - once proceedings begin must not be interrupted.

CASES CITED
Buateng -v- The State (1990) PNGLR 432
Ex parte Felman (1978) 52 ALJR 155
Kavali -v- Hoihoi (1986) PNGLR 329
Kekedo -v- Burns Philip (PNG) Ltd and Ors [1988-89] PNGLR 122
R -v- Lewis, Ex parte A.G. (1991) 2 Qld R 294
R -v- Maynad and Ors (1979) 69 Cr. App R 309
R -v- Simmonds and Ors (1967) 2 All ER 399
Re Criminal Circuit, Eastern Highlands & Simbu Province (1990) PNGLR 82
Supreme Court Review No.5 of 1987 (1987) PNGLR 216
The State -v- Joe Ivoro (1980) PNGLR 1
The State of PNG -v- Kapal (1987) PNGLR 417
The State -v- Sari (1990) PNGLR 48

After a week from when the accused was indicted on four counts of conspiracy to export drug and in the middle of the examination-in-chief of the State's third witness, on the 24th of August the State counsel indicated that an application would be made to the Supreme Court to review my two previous rulings. For that matter I was asked to adjourn the proceedings overnight for a full submission to be prepared and made the following morning. Mr Gah gave a bare minimum of what the State's submissions would be.

As against these skeletal submissions by Mr Gah, Mr Molloy on behalf of the accused advised that they would be opposing the application on three grounds. The first ground was that the Public Prosecutor did not have a standing to seek review before the Supreme Court. On this proposition Mr Molloy relied on PNG Supreme Court decision in Review No.5 of 1987 (1987) PNGLR 216. The principle is summarised in the headnote:

"In the absence of statutory enabling provision the Public Prosecutor does not have power or standing to seek judicial review, pursuant S155(2)(b) of the Constitution of a point of law on a demurrer to an indictment, that is, before arraingment and where there is no acquittal"

On the second ground Mr Molloy argued that the State could not seek review unless there were no other remedies available. On this the Counsel relied on the case of Kekedo -v- Burns Philp (PNG) LTD & Ors [1988-89] PNGLR 122. In that case the Supreme Court confirmed the statement of law applied in Independent State of Papua New Guinea -v- Kapal (1987) PNGLR 417 where the Court said at page 421 - 422:

"One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, e.g. statutory provision for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used..."

In the last ground the Counsel argued that it was unfair to the Accused for the criminal proceedings, which had gone on for some time to be interrupted by the State. On this argument Mr Molloy relied on a Queenslands case, R -v- Lewis, Ex parte Attorney- General (1991) 2QLD R. 294. In that case at page 302 Macrossan CJ said

"In trials on indictment justice demands that in all ordinary cases a trial once commenced should proceed through to conclusion on the evidence which the Crown has, in the usual way, disclosed to the accused in advance or on such of it as the trial Judge decides should properly be admitted. Dislocation of the trial or delay in the course of it has the potential or injustice to the accused who remains in jeopardy until the trial is concluded".

The following morning, on the 25th of August, the State Counsel advised that the State was not proceeding with the proposal to apply to the Supreme Court for a judicial review but instead the State would ask the National Court to declare a mistrial and abandon the proceedings. The State Counsel argued that the court must do so in the interest of justice under S.59(2) of the Constitution. The first ground of the submission was that my two previous rulings were wrong and that secondly I had read the depositions. S.59 (2) of the Constitution says:

"The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly"

On the claim that I have read the depositions and on that basis I must disqualify myself, the State Counsel referred to a National Court case, namely The State -v- Joe Ivoro (1980) PNGLR 1. I have tried to understand the State's argument but still I am not clear. On the one hand the argument was that I was prejudiced because I had read the District Court depositions. On the other hand it is argued that I was misled and hence my two previous rulings were based upon my misunderstanding. Before discussing Joe Ivoro's case, let me establish as matters of fact what depositions that I have read that the State alleges as the cause for my prejudice. First the District Court depositions that relate to the charge of possession of drugs. On this charge the accused was tried and acquitted before the District Court. These depositions were tendered by consent and the State Counsel has conceded to that.

The second aspect of reading of the depositions relate to the reading in general as part of my responsibility as a Listing Judge. The State appeared not have made a direct issue of this. As the events at the trial had gone at a fast rate the Counsel for the State might not have directed his mind to this aspect. I consider it is important to deal with it. Order 2 of the Criminal Practice Rules 1987 gives a wide power to a listing Judge to conduct a pre-trial review. Rule 1 says

"Prior to a trial of the person to be charged on indictment application may be made by the accused or his lawyer or the Public Prosecutor for practice directions under this Order."

Rule 2 says:

"If no application is made under Rule 1 the Court may of its own volition list the matter for such directions".

Rule 5 reads:

"The hearing shall be attended by counsel briefed to conduct the trial or in special circumstances counsel especially instructed to deal with matters arising in hearing under Rule 6 of this Order"

Rule 6 says:

"At a hearing under this rule Counsel shall inform the Court -

(a) of the plea at the trial;

(b) of the prosecution witnesses required at trial as shown on the committal documents and any notices of further evidence then delivered and of the availability of such witnesses;

(c) of any additional witnesses who may be called by the prosecution and the evidence they are expected to give; if the statements of these witnesses are not then available for service a summary of the evidence that they are expected to give shall be supplied in writing;

(d) of facts which can be and are admitted pursuant to S.589 of the Code and which can be reduced to writing at the trial and of the witnesses whose attendance will not then be necessary;

(e) of the probable length of the trial;

(f) of exhibits which are to be provided and whether they are to be admitted by consent;

(g) of issues, then envisaged as to the mental or medical condition of any accused person or witnesses;

(h) of any point of law which may have arise on trial, any questions as to the admissibility of evidence which then appears on the face of the papers and of any authority on which either party tends to rely as far as can be possibly envisaged at that stage;

(i) of the names and addresses of witnesses from whom statements have been taken by the prosecution who are not going to be called and, in appropriate cases, disclosure of the content of those statements;

(j) of any alibi not then disclosed pursuant to order 4 of these Rules;

(k) of the order and pagination of the papers to be used by the prosecution at the trial and of the order in which the witnesses for the prosecution will be called;

(l) of the likely assistance through a request for a probation report;

(m) of any other significant matter which might affect the proper and convenient trial of the case."

Rule 7 is also important and it says

"At a hearing under this rule application may be made by any party for an order relating to -

(a) any matters arising under Rule 6;

(b) the severance of any count and accused on the indictment;

(c) amendment or provision of further and better particulars of any count on the indictment;

(d) the time for compliance with an order made under rule (c);

(e) the provision of a transcript of a trial proceedings;

(f) and such other order necessary to secure the proper and efficient trial of the accused person"

The conduct of pre-trial conference is necessary on every case that enters the National Court Crimes list. The aim is to give the date and duration of the trial of each case as near as possible to reality. In relation to the proceedings before me, when the accused appeared before me the first time I asked him why he was asking for 14 days and where his lawyer was. I asked him to bring his lawyer with him for a pre-trial conference the next time he came. But he came without a lawyer again and also a number of times subsequently. On one of those occasions in an open court and in the presence of the State Counsel who was responsible for conduct of the pre-trial conferences I reduced the 14 days to 10 days. To do that I had to have a look at the relevant documents to give me some idea. This was done as part of my responsibility as the Judge Administrator and listing Judge. This practice is now accepted in many jurisdictions and we have recently introduced it in Papua New Guinea. Reading documents is not to establish guilt or otherwise of an accused but the aim is to reduce any unnecessary trial time to try the real issues only. In a text book on "Case Flow Management in the Trial Court" by Maureen Solomon and Douglas K Somerlot (1987 ed, American Bar Association) the authors discuss judicial leadership and commitment in management of cases and warn that there may be a tendency for some people to fear that case management system may be a threat to judicial independence. They say at page 9:

"There will be a tendency for some judges to view the case flow management system as a threat to judicial independence. It is important to distinguish between independence in decision making and administrative independence. An effective case-flow management system, while requiring some sacrifice of administrative independence with respect to processes, should in no way threaten independent judicial decision making. Case flow management enhances the quality of justice by imparting rationality and predictability to the process and by minimising delay to disposition".

The idea of case management should not be so strange.

Especially in conspiracy trials prior preparation is necessary to shorten trials and duty is not only on lawyers but also on judge to take necessary steps. There are strings of cases on this. I mention two for example R -v- Simmonds and Others (1967) 2 All ER399, and R -v- Maynard and Ors (1979) 69 Cr. App R 309.

Let me return to Joe Ivoro's case. In that case the trial judge read the depositions when he was told that the accused were going to plead guilty. Indeed they pleaded guilty and on allocutus they made certain statements inconsistent with their pleas. His Honour therefore decided to disqualify himself. On page 6 he said

"After giving much consideration to this matter, I have decided to disqualify myself from presiding at the trial of these two counts. I have come to this conclusion because of the peculiar way in which the matter preceeded before me. I have read the papers on this matter and at one point proceeded to conviction on the basis of the evidence contained on the depositions. In so doing I have formed an opinion regarding the evidence to be called by the State at the trial. Consequently I would not be seen to be impartial in the trial of the issues. In coming to this conclusion, I have regard to the principles stated in the Queen and His Honour Judge Leckie; ex parte Felman (1978) 52 A.L.J.R.155 at page 158

"the principle is now established that a judge may not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced and impartial ..... it must be a suspicion that a right minded person would form"

It should be apparent, and I consider it apparent, that the factual situation that had forced the trial judge in Ivoro's case to disqualify himself was very different from the facts that the State's counsel relies on to ask this Court to declare a mistrial in the proceedings. I have tried to understand in what way the State's says that I may be biased. Many cases both the National Court and Supreme Court have discussed S.59(2) of the Constitution. Before a judge can accede to an application to disqualify himself on the grounds of bias, there must be a real likelihood of bias and the objection by a party is not unprincipled, frivolous or futile. See The State -v- Sari (1990) PNGLR 48, and Kavali -v- Hoihoi (1986) PNGLR 329.

One of the most sensitive cases that the Supreme Court has ever dealt with was in relation to Buateng -v- the State (1990) PNGLR 342. This was an appeal from a trial Judge sitting on a criminal case where the accused was tried for rape in Rabaul. During the trial the trial Judge's wife attended the court and at one stage she was seen openly in court sitting beside the victim in the case. Upon appeal to the Supreme Court, the appeal was allowed and conviction was quashed and a new trial was ordered. At page 346 the Supreme Court said

"Justice requires that there be complete absence of any inference or impression that a Judge or his family have, by personal association with parties or witnesses, influence the outcome of a case. However impeccable a judgement or decision of a Judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case."

I think, with respect, the real difficulty is not that anybody thinks I am biased or prejudiced but that the State finds it difficult to go around my first ruling of the 17 August supported by the second ruling on the 23rd August. The State insists on calling direct evidence of possession of drug by the accused. While that may be the strongest way to call evidence to strengthen the State case, I consider that on a charge of conspiracy direct evidence on possession by an accused may not be necessary. A person may be guilty of conspiracy for participating in a different act so long as that act is carried out in futherance of a common plot.

It is not only the State interest that must take prominence; the accused interest must also be protected. The State is an abstract entity, it has the means and resources to go at length but an individual is immediately affected as a person and his resources required to defend proceedings brought by the State. While the principle in Ex parte Attorney-General demands continuity of cases when they begin, Papua New Guinea Constitution and many cases also demand the same. Sections 37 and 59(2) of the Constitution demand the hearing of a charge against an accused by an independent Court and that the hearing be fair, S.37(3) also demands that such hearing be within a reasonable time. See Re Criminal Circuit in Eastern Highlands, and Simbu (1990) PNGLR 82. Justice is not one way thing and I consider that my first ruling was fair to both parties. In that ruling I said:

"I think that in a serious charge such as to conspire to export dangerous drugs, the State must in the interest of the people take the offenders to court of law and try them. I shall not therefore quash the indictment or stay the charges. However to protect the accused's interest in this case, the State must avoid proving that the accused had in possession of dangerous drug because he had already been dealt with and acquitted on this charge. How the State could do that successfully is the matter for the State".

What the State is doing is to interrupt the proceedings and go back to the drawing board. Comparatively that State may suffer but the accused may suffer more by going through the whole process again. I therefore refuse the application and order that the proceedings continue.

LAWYERS FOR THE STATE: STATE PROSECUTOR
LAWYERS FOR THE ACCUSED: BLAKE DAWSON & WALDRON