Kumo v Killian [1976] PNGLR 149 (23 April 1976)

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APPEAL - Inferior Courts - Local Courts - Appeal by way of rehearing - Fresh evidence - Principles to be applied in receiving fresh evidence - Relationship to miscarriage of justice under s. 43 of Local Courts Act 1963 - Being without lawful means of support - Retrial ordered.

The appellant was charged with and convicted on a plea of guilty of being an idle and disorderly person in that he was without lawful means of support thereby contravening s. 69(1) of the Police Offences (N.G.) Act 1925-1966. On appeal against conviction and sentence upon the grounds that there was no evidence to support the charge and that a plea of guilty should not have been entered, the appellant sought to tender fresh evidence in the form of affidavits, indicating that on the relevant date he was enrolled as a student at the Kerowagi High School, that he had come to Mount Hagen to see his brother about getting some money for his school fees, that he was in his brother’s house when arrested and that at the time he had K30 on him.

(1) On an appeal to the National Court of Justice from a decision of a Local Court which pursuant to s. 46(1) of the Appeal (Local Courts) Act 1967, shall be “by way of rehearing”, the principles to be applied in determining whether or not to receive fresh evidence in the appeal are those generally applicable in any appeal which is an appeal by way of rehearing, as distinct from an appeal strictly so called. Accordingly the “evidence should be evidence that could not with reasonable care have been discovered previously and ... should be of such a character that if it had been tendered, it would have been of such weight as, if believed, to have an important influence on the result”. Green v. The King [1939] HCA 4; (1939) 61 C.L.R. 167 at p. 175 per Latham C.J.

(2) In applying these principles in relation to the question of whether there has been a substantial miscarriage of justice as required by s. 43(3) of the Local Courts Act 1963, regard must be had to all the circumstances of the case.

(3) The fresh evidence sought to be tendered was such as ought to be received within these principles: it was of such a character that if tendered before the magistrate, it would have been of such weight as, if believed, to have an important influence on the result, at the least in that the plea of guilty may not have been accepted; and this circumstance outweighed the fact that the appellant had failed to put it to the magistrate although it was available at the time.

(4) Because the evidence was not before the magistrate there had been a substantial miscarriage of justice within the meaning of s. 43 of the Local Courts Act.

(5) In view of the nature of the evidence available the proper order was an order that the matter be reheard by the Local Court at Mount Hagen.

This was an appeal against conviction and sentence on a plea of guilty to a charge of being an idle and disorderly person in that the appellant was without lawful means of support thereby contravening s. 69 (1) of the Police Offences (N.G.) Act 1925-1966.

O’LEARY AJ: On the 17th January, 1976 the appellant, Kaspar Kumo, was charged before Mr. M. A. Stoddart, a Local Court Magistrate at Mount Hagen, on an information that on that day at Mount Hagen he was an idle and disorderly person in that he was without lawful means of support, thereby contravening s. 69 (1) of the Police Offences (N.G.) Act, 1925-1966.

The statement of facts upon which the prosecution relied is in the following terms:

“On the Saturday 17/1/76 at Mt. Hagen the defendant was found in a squatter settlement in the town area, and was found to have insufficient lawful means of support. When questioned by police, the defendant admitted that he had no employment, not enough money to support himself, and no permanent place of living. He was brought to Mt. Hagen police station where he was charged with the offence.”

According to the record of proceedings, upon appearing before the learned Magistrate the charge was read and explained to the defendant. He was then asked by the court: “Have you heard the charge read?”, to which he answered, “Yes”; and then: “Do you understand the charge read?”, to which he also answered, “Yes”. Having elected summary trial before the Local Court, the defendant, on his plea, said, “Yes true”, and in reply to the statement of facts which was read to him, replied “All true”. The court thereupon entered a plea of guilty, convicted the defendant and sentenced him to one (1) month’s imprisonment with hard labour.

Against that conviction and sentence, the defendant now appeals to this Court, relying upon the following grounds:

The relevant parts of the reasons for judgment supplied by the learned magistrate are as follows:

(3) The charge was fully explained to the defendant. The elements, no or insufficient lawful means of support in the Mount Hagen squatter areas, and the fact that he was an unbidden burden to his relatives and friends in the area, were clearly explained to the defendant who stated it was so understood.

(8) The defendant offered no account as to the means and lawfulness thereof to escape a now clearly defined liability.

(9) Facts of the defendant having no such lawful means and being an unwilling burden to his familiars having been proven to the satisfaction of the court, the defendant was offered the allocutus to again give opportunity (taken by some defendants) to account for and answer the charge.

(10) The allocutus having again offered no satisfactory reason for not proceeding to conviction, a conviction was so entered.”

The substantial matter argued before me on the appeal was that the learned magistrate ought not to have entered a plea of guilty to the charge, at least without making further inquiries of the defendant as to what his means of support in fact were. In support of his argument counsel for the appellant relied heavily on certain dicta in the judgment of Raine J. in the case of Paul Nori Kombo v. Vapipi[cxc]¹ — see in particular pp. 244-245 of that judgment. And so it was argued that before entering a plea of guilty the magistrate should have inquired of the defendant, for example, why he was out of work, what efforts he had made to obtain employment, if he were living with wantoks, whether he was really welcome in their house or whether he was sponging on them, and so on. Having failed to do so, it was argued, the magistrate’s decision to convict as on a plea of guilty was a nullity, and ought to be set aside.

With respect to the argument so ably presented by counsel for the appellant, I think he has misconstrued what his Honour had to say in the case referred to. Indeed at p. 244 of his judgment, his Honour made his position clear when he said:

“I have no wish, and it would be dangerous, to lay down any strict rules that must be adhered to by magistrates hearing charges such as these.”

What I think the learned Judge set out to do in that case was to give some general guidance to magistrates as to the factors they ought to take into consideration in deciding whether or not to convict on a charge of this kind, or in considering what weight they ought to attach to anything a defendant might have to say when called upon to answer a charge of this nature. Thus he said (at p. 15):

“The fact that a man has not got a job is a matter that has to be considered. So is the fact that he has no money or very little money and so is the fact that he is being helped by kindly wantoks who house and feed him.” “But,” he went on to say, “these matters, whether taken in conjunction, or taken singly, are not conclusive.”

And so the mere fact that a person was living with his wantoks did not necessarily mean that he was without lawful means of support: he may be a welcome guest, or, on the other hand, he may be “an idler who sponges on his relatives and moves from one house to another eating other peoples’ rice and doing no work.” Likewise, the mere fact that a man has not got a job does not necessarily mean that he is without lawful means of support: he may have tried to get work but couldn’t; on the other hand, he may have been in a place for three months and not tried to get work. Each case must depend on its own particular circumstances and care should be taken in every case to ascertain that the true circumstances are disclosed before a conviction is recorded against the defendant.

It is true that his Honour directed particular attention to the case where a defendant charged with this offence pleads guilty to it, and he referred to that caution which magistrates, no less than judges, should exercise when deciding whether or not to accept a plea of guilty to any offence: cf. The State v. Manga Kinjip[cxci]². And so he said:

“The magistrate hearing the case might well, having heard some of the evidence, decide that a plea of guilty is quite inappropriate. This is particularly so in proceedings in this country. It is highly likely that 95% of alleged offenders will be fairly simple people, and in most cases they will be apprehended by native constables. In most cases the constable will come upon a possible offender who is sitting or lying down somewhere or wandering around with no set purpose. In most cases a constable will ask whether the man or woman has a job. A good many of these offences are committed in the bigger towns to which people come from all directions in search of work, and in search of a different life than the life they are used to in villages. They are often asked where they are living and reply, ‘With wantoks’. They are then asked whether they have any money and so very often they have not. They are then arrested and taken before a magistrate. Counsel have told me on several occasions that people such as these are wont to regard the offence alleged against them as being that they are out of work. Counsel also informed me that confusion has arisen because the view has been taken on occasions by the police and by magistrates that the fact that a man is living with wantoks tells against him and indicates that he has no lawful means or insufficient means of support.”

Therefore, his Honour said, “it is apparent that there will be many cases where the plea of guilty should be regarded with great caution and magistrates should be careful not to regard such a plea as irrevocable and immutable” (p. 245).

In saying all this, however, I do not understand his Honour to be saying that the duty of magistrates in deciding whether or not to accept a plea of guilty in this type of case is any higher or any different from their duty in that respect in relation to a plea of guilty to any other offence. All I think his Honour was doing was elaborating in relation to a vagrancy charge the principle that has been perhaps most clearly set out by Widgery J. in R. v. Blandford Justices Ex p. G (an infant)[cxcii]³ when he said, at pp. 1239, 1240:

“In every instance, as it seems to me, when a magistrate receives the reply ‘Guilty’ to the common form question asking the defendant to plead, it is necessary for the magistrate to consider whether it is safe to accept the plea and enter a conviction. Of course, in many cases, the question is not a difficult one. If the defendant is represented, if the defendant as in R. v. West Kent Quarter Sessions, Ex P. Files ((1951) 2 T.L.R. 470) is a man of mature years who clearly understands what is being put to him, it may well be that the magistrate can accept the plea in the sense that he can regard it as being a satisfactory plea upon which he can safely act without further inquiries. But in cases where the defendant is not represented or where the defendant is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about the case, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one. I have no doubt that experienced magistrates in fact do in these cases wait until they have heard the facts outlined by the prosecution and wait until they have heard something of what the accused has to say.

If at that stage the magistrate feels that nothing has been disclosed to throw doubts on the correctness of the plea of guilty, he properly accepts it, enters a conviction and that is the end of the matter so far as this point is concerned.

If, however, before he reaches that stage he finds that there are elements in the case which indicate that the accused is really trying to plead not guilty or, as Lord Goddard C.J. (R. v. Durham Quarter Sessions, Ex p. Virgo ([1952] 2 Q.B. 1, at p. 6) put it, ‘Guilty but’, then the magistrate has, in my judgment, no discretion, but must treat the plea for what it is, namely, a plea of not guilty.”

Of this passage, Frost J. (as he then was) said in Laeka Ivarabou v. Nanau[cxciii]⁴: “I consider that every word in this passage applies a fortiori in the Territory, particularly in cases where the defendant is a native and is unrepresented.”

Applying those principles to the present case, I do not think there is any reason to doubt the correctness of the learned magistrate’s decision to accept the defendant’s plea of guilty. The charge was read and fully explained to the defendant, and he agreed that he understood it. When asked to plead to it, he said, “Yes true”. The statement of facts was read and explained to the defendant, and in reply he said, “All true”. The statement of facts was, in my view, sufficient “to raise a reasonable or probable presumption of the absence or insufficiency of lawful means of support” so as to put the defendant to proving “to the satisfaction of the court that he has sufficient lawful means of support or that such means of support as he has are lawful.” Section 69 (2) and see Zanetti v. Hill[cxciv]⁵, per Dixon C.J. Thereafter the defendant was given a specific opportunity (in fact, he seems to have been given two specific opportunities) to give an account to the court of the sufficiency and/or lawfulness of his means of support. He failed to do so. I, therefore, think the learned magistrate was quite right in proceeding to conviction and sentence as he did.

In further support of the appeal, counsel for the appellant sought to tender “fresh evidence” before me in the form of two affidavits, one by the appellant himself and one by a person described as “F.L. Nunn”. The purpose of seeking to tender this evidence was, as I understand it, either to show that at the relevant time the appellant did have sufficient lawful means of support or that such means of support as he had were lawful, or that if it had been put before the learned magistrate at the time he may well not have accepted the defendant’s plea of guilty.

The tender of the affidavits was objected to by counsel for the State and, on this, as on the matter just dealt with, I reserved my decision. I now turn to consider whether the evidence is such as may properly he received in the appeal as “fresh evidence”.

Appeals from a Local Court to this Court are provided for under s. 43 of the Local Courts Act. So far as is relevant for present purposes, that section provides as follows:

“(1) Subject to the next two succeeding subsections, a person aggrieved by a decision of a Local Court on a matter may appeal to the Supreme Court therefrom.

(3) The Supreme Court may order an amendment to be made at any stage of the proceedings on appeal and an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice.

(4) In hearing an appeal under this section, the Supreme Court may, if it is satisfied that the justice of the case so requires, receive fresh or additional evidence, whether orally or by affidavit.”

By Rule 3 (1) of the Appeal (Local Courts) Rules, 1967, made pursuant to s. 46 (1) of the Act: “An appeal shall be by way of rehearing.”

In my opinion, on an appeal to this Court from a decision of a Local Court, the principles to be applied in determining whether or not to receive fresh evidence in the appeal are those generally applicable in any appeal which is an appeal by way of rehearing, as distinct from an appeal strictly so-called. That is, that “the evidence should be evidence that could not with reasonable care have been discovered previously and ... should be of such a character that, if it had been tendered, it would have been of such weight as, if believed, to have an important influence on the result.” Green v. The King[cxcv]⁶ per Latham C.J. at p. 175. That is the general rule as applied in both civil and criminal appeals. However, in the case of criminal appeals, as the learned Chief Justice went on to explain, those principles “are applicable, not as independent rules, but as related to the subject of miscarriage of justice. They should not ... be regarded as absolute or hard and fast rules.”

In applying those principles in relation to the question whether there has been a miscarriage of justice, “the court should consider all the circumstances of the case. If, for example, there being no elements of fraud, mistake or surprise, an accused person has, by himself or by his legal advisers, deliberately decided to set up a particular defence, he cannot complain as of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence. Thus, if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given. There is no miscarriage in such a case. Thus the rules as to availability of alleged fresh evidence and the weight of that evidence must enter into a consideration of the propriety of granting a new trial in a criminal case. These rules ... are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.” (ibid)

In the present case I must consider whether or not there has been a miscarriage of justice because, as I have noted, an appeal may be allowed only if there is such, indeed only if there has been a substantial miscarriage of justice. I, therefore, think I should consider the question of the reception of the fresh evidence in the light of what has been said above.

The fresh evidence sought to be tendered in the present appeal is, in my opinion, such as ought to be received in accordance with the above principles. It is somewhat sketchy but, in effect, amounts to this, that, on the relevant date, the appellant was enrolled as a student at the Kerowagi High School, that he had come to Mount Hagen to see his brother about getting some money for his school fees, that he was in his brother’s house when he was arrested and that at the time he had K30.00 on him. This evidence is clearly such that the appellant himself could have put it before the learned magistrate when he appeared in the Local Court. It therefore cannot be said to be receivable now on the ground that it could not with reasonable care have been discovered previously. However, the further question has to be considered, namely, whether it is of such a character that, if it had been tendered before the learned magistrate, it would have been of such weight as, if believed, to have an important influence on the result. I think the evidence is of such a character. I do not understand the principles to which I have referred above to mean that both elements must be present before an appeal should be allowed. It seems to me that there must be cases where, although the fresh evidence was available to the accused at the time of the trial, it is nevertheless of such significance that it ought to be received on an appeal and an appeal allowed on the basis of it.

I make no comment on the quality of the fresh evidence in the present case, but it does seem to me that if the accused himself had put these matters to the magistrate when called upon to answer the charge, the magistrate may well have decided, at the least, not to accept his plea of guilty. In that event, the case would have been heard in the ordinary way, and the result may well have been different, depending, of course, on what evidence was called for the prosecution. This circumstance, I think, outweighs the fact that the evidence was available to the appellant at the time and for some reason or other, he neglected or chose not to put it before the Court. I prefer to think that, for whatever reason, the appellant here merely failed to put it to the magistrate rather than that he chose not to.

I therefore think that because it was not put before the learned magistrate there has been a substantial miscarriage of justice and consequently I allow the appeal. That, however, raises the further question as to what other order I should make. The only facts before me are those contained in the record of proceedings and the fresh evidence set out in the two affidavits to which I have referred. I do not think I could, on the basis of that evidence, reach any conclusion on the matter so as to reverse the magistrate’s decision or substitute for it any decision of my own. I therefore think the proper order for me to make is to order that the matter be reheard by the Local Court at Mount Hagen.

There is one further matter involved in the appeal which has not been argued before me, but to which, for the sake of completeness, I think I should refer. That is the question whether I should entertain the appeal notwithstanding that the appellant pleaded guilty before the magistrate. It has been said that the Court will entertain an appeal in those circumstances “if it is satisfied that the plea was entered without a proper appreciation of the nature and quality of the offence, or that, upon the admitted facts, the appellant could not lawfully be convicted of the offence charged.” Gray v. Jones[cxcvi]⁷ per Napier C.J. at p. 206. I have already held that in the present case the appellant could, on the admitted facts, have been lawfully convicted of the offence charged. In that event, if I am to entertain the appeal, I should be satisfied that the plea of guilty was entered by the appellant without a proper appreciation of the nature and quality of the offence. There is nothing before me to indicate positively that that was the case here, but since the appellant did have in his possession certain information which he should have, but failed to, put before the magistrate, it may well be that he did not have a proper appreciation of the nature and quality of the offence. And so, at the least, it seems to me that there must be a doubt about the matter, and in that event, I think I should give the benefit of any doubt to the appellant. I certainly feel I should not resolve it adversely to him, particularly since the question has not been argued before me.

I therefore allow the appeal and I order that the matter be reheard before the Local Court at Mount Hagen.

[cxc][1975] P.N.G.L.R. 233.

[cxci][1976] P.N.G.L.R. 86.

[cxcii][1967] 1 Q.B. 82.

[cxciii][1967-68] P.N.G.L.R. 12 at p. 17.

[cxciv][1962] HCA 62; (1962) 108 C.L.R. 433 at p. 438.

[cxcv](1939) 61 C.L.R. 167.

[cxcvi][1948] SAStRp 13; [1948] S.A.S.R. 201.

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Papua New Guinea Law Reports

Kumo v Killian [1976] PNGLR 149 (23 April 1976)

Papua New Guinea Law Reports - 1976