SC654

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO. 42 OF 1997

BETWEEN:

STUART MERRIAM
Plaintiff

AND:

THE STATE
Defendant

Waigani : Amet CJ,
Sheehan & Sawong JJ
2000 : 28 April & 13 July

Criminal Law – Application for judicial review based on fresh evidence – Constitution s.155 (2) & (4) – Supreme Court Act s.6(1).

Evidence – Fresh evidence – Recantation of Evidence – Treatment by the Court –Principles of – Applied James Pari v. The State [1993] PNGLR 173.

Facts:

The Applicant was convicted by the National Court on two counts of sodomy and sentenced to five years imprisonment in hard labour on each count to be served concurrently. On appeal the Supreme Court quashed the conviction on the first count and reduced the sentence on the second count from five years to three years. The Applicant served the sentence and had been discharged.

The Applicant applied for judicial review under Constitution s.155(2)(b) on the basis of fresh evidence.

The principal witness against the Applicant, the Complainant, gave evidence that the evidence in the National Court was not true. He had been threatened and induced to give that false evidence.

Held:	(1) Application for review upheld.

(2) Verdict quashed and sentence set aside.

Papua New Guinea cases cited
James Pari v The State [1993] PNGLR 173

Other cases cited
R v Flower (1966) 1 QB 146
Craig v R (1993) 49 CLR 429 @ 439
Coady v R (1937) CLR 170 @ 183

Counsel:
G Sheppard, for the Plaintiff.
P Mogish, for the Defendant.

13 July 2000

By The Court: The Applicant Stuart Merriam was charged and convicted in the National Court on two counts of sexual intercourse, with one Iyove Apo, a male, against the order of nature. He was sentenced to 5 years imprisonment with hard labour on each count to be served concurrently. On appeal the Supreme Court quashed the conviction in respect of the first count, confirmed the conviction on the second count and reduced the sentence to 3 years only. He served the sentence and in due course was released on parole.

He has now applied for judicial review of the remaining conviction pursuant to s. 155 (2) of the Constitution on the basis of fresh evidence. He was given leave to adduce fresh evidence pursuant to Constitution s.155 (4) and s. 6 (1) of the Supreme Court Act. This was the evidence of the principal witness for the State in the trial, the complainant Iyove Apo, upon whose evidence the conviction was founded. His evidence in the trial was that Dr Stuart Merriam had sexually molested him against the order of nature at the Goroka Show in 1993. The complainant now gave evidence that the evidence he gave in the National Court of the alleged sexual molestation by Dr Merriam is not true. He deposed that Dr Merriam did not sexually molest him at all. He said that at the time he was forced and induced to give that false evidence. He said he was pressured by a missionary named Daniel Stanton and another staff at the mission station named Benny Okie who said that if he gave false statement against Dr Merriam he would be paid K40,000.00 to K50,000.00. He said that Benny Okie who was from a neighbouring village was a known sorcerer who had threatened him that if he changed his story his life would be in danger. He was not paid any money and Daniel Stanton had since gone back to America and Benny Okie was now deceased and so he now felt free to come forward to tell the truth.

Applicants Submission

It was submitted that the Court should find that the evidence Iyove Apo now gave was truthful and that he made up the evidence in the National Court because he was bribed and threatened. Given this recantation by the principal witness for the State the evidence in the trial was now rendered fundamentally unreliable. It was argued that at the very least the Court should find that the conviction of Dr Merriam was unsafe because the prosecution case relied upon the word of the complainant against that of the accused. There was no independent corroborative evidence. 

The Applicant submitted that the test is whether the evidence that the Court has heard renders the conviction of the Applicant unsafe or unsatisfactory. Reliance was placed on an English Court of Appeal decision, Arthur John Saunders, 1974 58 Criminal Appeal Reports, where the Court quashed the conviction of the appellant on the ground that the verdict was "unsafe or unsatisfactory" after fresh evidence had been taken on commission from an accomplice, which the Crown regarded as reliable.

The Respondent’s Submission

The learned Public Prosecutor referred to the proper principles as enunciated in the case of James Pari v. The State [1993] PNGLR 173 as to how the Court should deal with such fresh evidence, which we re-articulate in our judgment. He submitted essentially that if the Court were inclined to accept the witnesses’ evidence, then because he had perjured himself, that is lying in the National Court, he should be regarded as plainly unreliable. Mr. Mogish submitted that at the highest the witness’ evidence is worthless and the appeal should therefore be dismissed and conviction upheld.

Principles of Law

In Pari v. The State (supra) the Court adopted with approval this statement of principle from an English Court of Appeal decision in R v. Flower (1966) 1 QB 146 where Widgery J, delivering the judgement of the Court said:

"When this Court gives leave to call fresh evidence which appears at the time of the application for leave to be credible, it is still the duty of the Court to consider and assess the reliability of that evidence when the witness appears and is cross-examined, and this is particularly true where evidence is called in rebuttal before this Court.

Having heard the fresh evidence and considered the reliability of the witness, this Court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the Court can and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the Court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the Court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the Court would no doubt be inclined to order a new trial so that the evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility; namely that this Court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the Court will then proceed to deal with the appeal as though the fresh evidence had not been tendered."

Ellis J, in Pari v. The State (supra), adopted the following statement by the Australian High Court in Craig v. R (1933) 49 CLR 429 at 439:

"A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable man to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced."

The Court also adopted with approval this statement of principle by the Australian High Court in Davies and Cody v. R (1937) CLR 170 at 183:

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. …" 

Application of Principles to this Case

How reliable is the evidence of the witness? The State attempted to show that the witness was influenced by the Applicant and his associates to come forward after many years. It was attempted to show that the witness only came forward to recant his evidence at the persuasion of the Applicant and his associates who provided the financial means for him to go to Goroka and come to Port Moresby and to see a lawyer. The circumstances were such that the witness is not reliable and so his evidence should not be believed, it was contended.

We accept the principles referred to and adopted in Pari v. The State (supra). Firstly, we confirm that the principal test in a criminal appeal against conviction is whether "the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;" per s. 23 (1) (a) of the Supreme Court Act. This is enunciated by case authority including Saunders’ case referred to. In order to assess whether the evidence is of such a quality and character that it would render the verdict unsafe or unsatisfactory, it is necessary to consider and assess the reliability of the evidence after it has been subjected to full examination. The fact that the witness had sworn that he had committed perjury by telling untruths in the Court below is not sufficient ground itself for setting aside a verdict. In determining whether the witness is reliable and the evidence credible, it is necessary to assess carefully the nature of the fresh evidence, the circumstances surrounding and giving rise to the change of evidence, the demeanour of the witness in Court, the motivation and pressures brought upon the witness to change the story given at the trial, and the reasons given in this Court for the assertion that the evidence given in the trial was not the truth. See Pari v. The State (supra).

We think that the different epithets describing the quality of the evidence necessary to affect the verdict mean substantially the same thing in the final analysis, that is that the verdict is unsafe and unsatisfactory and should not be allowed to stand. Are we so satisfied with the quality and character of evidence led in this application? The witness gave evidence in a very direct and straight forward manner. His evidence was not impeached in examination by the State. The State led no evidence in rebuttal to suggest any reason why the evidence and the reasons given for it cannot be acceptable. The circumstances subsequent to and leading to the volunteering of this evidence cannot be said to be such as to render this evidence unreliable and not worthy of acceptance. It is of course the most vitally relevant evidence, the very opposite of that which the witness gave in the National Court upon the basis of which the Applicant was convicted. It is in our view cogent and plausible and of such a character that it renders the verdict unsafe and unsatisfactory.

We would therefore quash the verdict and set aside the sentence.
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Lawyer for the Respondent : Maladinas Lawyers.
Lawyer for the Defendant : Public Prosecutor.