SC664

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 104 OF 1993

BETWEEN:

PATRICK AIPIT
Appellant

AND:

THE STATE
Respondent

Mt. Hagen	:	Jalina, Kirriwom & Lenalia, JJ
25 and 27 April 2001

Appeal – Evidence – Fresh evidence – evidence within knowledge of defence counsel during trial – Defence Counsel failing to subpoena relevant witnesses – whether evidence is fresh evidence – Evidence not fresh evidence – Application refused - Supreme Court Act (Ch No. 37) s.6 (1) (a).

Cases cited:
The following cases are cited in the judgment:
John Peng –v- The State [1982] PNGLR 331.
R-v McDermott (No 1) [1947 47 SR (NSW) 379.
Ratten –v- The Queen [1974] 131 CLR 510.
Mai Kuri –v- The State (No. 2) [1991] PNGLR 311.
John Kil –v- The State SC395.
James Pari and Tine Bomai Kaupa –v- The State SC228 dated 3rd May 1982 
Busina Tabe –v- The State [1983] PNGLR 10. 

Counsel:
B. Aipe for Appellant/Applicant
J. Kesan for Respondent/State

27 April 2001

THE COURT:	The Appellant was convicted and sentenced to life imprisonment on 16 July 1993 following a trial for murder. On 16 August 1993 he filed an appeal to this Court against both his conviction and sentence. He now seeks leave of the Court to adduce "fresh evidence". The application is made pursuant to s.6 (1) (a) of the Supreme Courts Act Ch. 37. That reads:

"6.	Appeal to be by way of rehearing,

(1)	An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the Court the decision of which is appealed against, subject to the right of the Supreme Court –

(a)	to allow fresh evidence to be adduced where it is satisfied that the justice of the case
warrants it, and
(b)	………………………………………."

The meaning of "fresh evidence" in s.6 (1) (a) of the Supreme Court Act Ch. 37 (the Act) was clarified in John Peng –v- The State [1982] PNGLR 331 where it was held unanimously by a three-member Supreme Court that: 

"Fresh evidence" for the purpose of s.6 (1) (a) is new evidence that is relevant, credible, admissible according to the rules of evidence and of such a character that combined with the evidence already given at trial the result in the minds of reasonable men ought to be affected." 

The Court referred to a number of English and Australia cases but its decision appears to have been influenced by what was said in two cased namely R-v McDermott (No 1) [1947] 47 SR (NSW) 379 and Ratten –v- The Queen [1974] 131 CLR 510. In R-v McDermott (supra) the following was said at p.382:

"Hence, when the Court is asked to exercise the jurisdiction conferred on it by s.12, to receive further evidence if it thinks it necessary or expedient to do so in the interest of justice ++++++++1045ion must always be: Would the addition of the new evidence to the other evidence in the case be likely to cause a reasonable jury to doubt the appellant’s guilt?"

In Ratten –v- The Queen (supra) Barwick CJ said at p.520:

"To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of the material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict would be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence.

But if there is fresh evidence which in the court’s view is properly impose of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence."

John Peng –v- the State (supra) was followed by a five-member bench of this Court in Mai Kuri –v- The State (No. 2) [1991] PNGLR 311. So the law relating to the introduction of "fresh evidence" in a matter on appeal to the Supreme Court is as set out in Mai Kuri –v- The State (No. 2) which, as we have said, was followed in John Peng’s case.

We have been referred by Counsel for the Appellant to other cases on "fresh evidence" such as John Kil –v- The State SC 395, James Pari and Tine Bomai Kaupa –v- The State SC 228 dated 3rd May 1982 and Busina Tabe –v- The State [1983] PNGLR 10. From a summary of each case which counsel for the Appellant has given in this written extract of submissions, we consider that those cases can be distinguished on the facts as well as on the basis of type of "fresh evidence" from the case before us so we do not propose to follow them. In any event, whatever may have been the decision in the cases referred to us by counsel for the Appellant, cannot in our respectful view override the unanimous decision of the five-member bench of this Court in Mai Kuri –v- The State (N. 2) (supra) which we have referred to above.

In the application before us, the Appellant has sought to obtain leave to adduce "fresh evidence" from prospective witnesses such as Michael Maso, Wedea Daradamea, Douglas Konga and Aron Luai. The Appellant has filed an affidavit from each of them. He has also filed an affidavit from his lawyer, Michael Thoke who represented him at the time of his trial. The Appellant has himself filed an affidavit explaining the instructions he gave his lawyer as to his alibi defence and names of witnesses who should be called to support his alibi.

Of the witnesses whom the Appellant submits can give material evidence, Douglas Konga and Michael Maso are policemen. Douglas Konga deposes to being present with other policemen including Constable Daradamea when the Appellant went to the Liagam Police Station and reported an incident of arson in his Village at about 5:10 pm on 18 February 1993. Douglas Konga was also the Police Station Commander at the time.

He said that while they were talking they saw smoke rising from the Appellant’s Village and the Appellant and others were saying that his relatives were probably fighting in the Village. The Appellant and others then left and he did not know where they went.

Michael Maso was a senior detective in the Police Force. He was not present during the alleged reporting of the arson by the Appellant at Laiagam Police Station in 1993. He was directed by the then Provincial Police Commander (PPC) in about April 1996 to investigate an arson case reported by the Appellant. So his evidence would be of no use to the Appellant in so far as the defence of alibi is concerned. However, the interesting thing to note in Senior Constable Maso’s affidavit is that when he started investigating the case upon direction from the PPC, he could not locate the Occurrence Book but discovered that the relevant page was missing. He saw that the relevant page had been nicely torn out of the book. He still could not find the page that was torn out. He then went and enquired and was told that someone from the Ombudsman Commission removed it. He then went to Baisu Corrective Institution and enquired with the Appellant whereupon the Appellant produced a photocopy. The Appellant then gave it to Constable Maso.

The affidavit of Wedea Daradamea shows that he was on duty on 18th February 1993 at Laiagam Police Station and took down the complaint/report by the Appellant and Aron Luai that some people set fire to the Appellant’s house later that evening he entered it in the Occurrence Book. While he was chewing betelnuts and talking on the veranda they saw smoke rising from the Appellant’s Village. The Appellant and Aron Luai then left. Mr. Wedea Daredamea confirmed that the handwriting in the Occurrence Book was his. That is what he said in his affidavit filed herein on 22nd August 2000. However, in his affidavit sworn on 23 April 2001, Wedea Daradamea mentions additional things to those he mentioned in his earlier affidavit. For instance, in his earlier affidavit he did not mention anything about the Appellant and Aron Luai going to the Police Station to bail someone out from police custody but in his subsequent affidavit he does. The aspect about bailing someone out is consistent with what the Appellant and Aron Luai say in their respective affidavit which have been filed in support of the application.

It is interesting to note in paragraph 4 of Daradamea’s recent affidavit that:

"Patrick Aipit spoke to Douglas Konga about his clansmen burning the house down that day. I was directed by Douglas Konga to take the complaint down in the police Occurrence Book to be followed up later."

So it appears that the Appellant was aware that his house had been burnt down before he went to the Police Station. Not that he saw from the Police Station for the first time smoke rising from his Village.

In his affidavit, sworn on 23 April 2001 and filed herein on 24 April 2001, former Defence Counsel Michael Thoke disposes to being aware of alibi witnesses and sending the Appellant’s relatives to Laiagam Police Station to have the police witnesses conveyed to Mt. Hagen but the police witnesses refused unless they were subpoenaed. He says that the trial was set on two days notice so he did not have enough time. One alibi witness, Peter Kamsol ran way in the middle of his evidence after the trial judge warned him of the dangers of implicating himself. The other alibi witness, namely Aron Luai, was away from the Enga Province on duty and could not be called at the time of trial. So for those reasons Mr. Thoke did not call crucial or vital witnesses.

Does the evidence that is sought to be adduced by the Appellant satisfy the "fresh evidence" test or the principle for its acceptance as set out in John Peng –v- The State (No. 2) (Supra)? In other words is it relevant, credible, admissible according to the rules of evidence that combined with the evidence already given at the trial the result in the minds of reasonable men ought to be affected? Is it new evidence in that it has become available since the trial? The answer must certainly be in the negative. It is certainly not new evidence as the alibi evidence through the evidence of the Appellant himself that he was at Laiagam Police Station and reported an incident of arson in his Village at the time of the alleged offence was available at the time of trial. The Appellant gave evidence about it in his own defence during trial. Former Defence Counsel Michael Thoke confirmed policemen being available but could not attend to give evidence unless they were subpoenaed.

If the policemen refused to give evidence as they in fact did, Mr. Thoke could have subpoenaed the Laiagam Police Station Commander or the Provincial Police Commander to produce the Occurrence Book to give credibility and weight to the Appellant’s alibi evidence. The alibi evidence that is sought to be adduced by the Appellant is not credible and as such, would not in our view make any impact on the evidence already adduced at trial to create doubts in the minds of reasonable men. This is because the page of the Occurrence Book containing the report allegedly made by the Appellant was not found intact in the book. Instead the page was torn out and interestingly it was found in the Appellant’s custody at Baisu Corrective Institution in 1996. Douglas Konga’s two affidavits give different versions of what happened on 18 February 1993 when the Appellant allegedly went to report an arson incident in his Village and is therefore not credible of belief. Aron Luai’s evidence may not carry weight by reason of him being the Appellant’s close relative and as such he may be seeking to protect him.

For the foregoing reasons we refuse the Appellant’s application for leave to adduce fresh evidence.

Application to adduce fresh evidence refused.
________________________________________________________________
Lawyer for the Appellant	:	Public Solicitor
Lawyer for the Respondent	:	Public Prosecutor