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Schubert v The State [1979] PNGLR 66 (28 March 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 66 - Rolf Schubert v The State 

[1979] PNGLR 66

SC145

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROLF SCHUBERT

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

6 March 1979

28 March 1979

EVIDENCE - Swearing and Oaths - Competency - Child of tender years - Manner in which evidence to be taken - Inquiry as to whether understands liability to punishment for false evidence - When inquiry to be made - Oaths, Affirmations and Statutory Declarations Act 1962, ss. 18 and 19[lx]1.

APPEAL - Practice and procedure - Leave to add ground of appeal - Out of time - Leave in exceptional circumstances only - Matter for court’s discretion - Leave granted.

On appeal against conviction on a charge of unlawfully and indecently dealing with a girl under the age of twelve years, application was made for leave to amend the notice of appeal by adding five new grounds of appeal, the appeal and the application were then adjourned and on the adjourned hearing, one ground of appeal only was pursued namely “that the court did not satisfy itself that the (prosecutrix) was competent to give evidence”.

It was not in dispute that the prosecutrix was aged nine or ten, and that when called to give evidence, the trial judge, having observed her, inquired of the prosecutor as to her age. On asking the prosecutor whether she could be sworn or whether she would understand the nature of an oath, he was informed that she either should not be sworn or that she would not understand the nature of an oath. The witness was then affirmed and gave her evidence in pidgin, the trial judge stating in his report pursuant to r. 33(d) of the Supreme Court Rules 1977:

“I did not embark on any preliminary examination of the witness concerning her capacity for understanding the nature of an oath in view of what Mr. Karczewski told me. Having satisfied myself that she understood what Mr. Turukai had told her in a language she fully understood, I then permitted her to give evidence and from that point closely observed her demeanour and capacity to follow the questions she was being asked.”

Held

(1)      Leave to amend a notice of appeal where the time limit contained in s. 27 of the Supreme Court Act 1975 has expired, should only be allowed in exceptional circumstances and in the discretion of the court.

(2)      In the circumstances including the sudden late change of counsel for the appellant and the broad merits of the point taken, leave to add the new ground of appeal should be granted.

(3)      Where it appears that a child is incapable of comprehending the nature of an oath, the manner in which his or her evidence shall be given is laid down by s. 19 of the Oaths, Affirmations and Statutory Declarations Act 1962.

(4)      (Per Prentice C.J. and Andrew J.) It is not necessary under s. 19(1) of the Oaths, Affirmations and Statutory Declarations Act 1962, to inquire whether a witness to whom the section applies, understands that he or she is liable to punishment if he or she gives false evidence before an affirmation is administered; it is the overall effect of the section which is to be complied with.

R. v. Campbell, [1956] 2 Q.B. 432, referred to.

(5)      (Per Prentice C.J. and Andrew J.) In the circumstances, the inquiry required by s. 19 of the Act was adequately made in spirit and no miscarriage of justice had occurred.

(6)      (Per Raine Dep. C.J.) Section 19(1) of the Oaths, Affirmations and Statutory Declarations Act 1962, requires that once a court is alerted that a witness may be incapable of comprehending the nature of an oath, it must examine the witness and ensure that the latter clearly understands that he or she can be punished if his or her evidence is false before declaring how the evidence shall be taken.

(7)      (Per Raine Dep. C.J.) As no miscarriage of justice resulted from the trial judge’s failure to comply strictly with s. 19(1) of the Oaths, Affirmations and Statutory Declarations Act 1962, the appeal should be dismissed pursuant to s. 22(2) of the Supreme Court Act[lxi]².

R. v. Surgenor, [1940] 2 All E.R. 249, referred to.

Appeal

This was an appeal against conviction on a charge of unlawfully and indecently dealing with a girl under the age of twelve years.

Counsel

F. McAlary Q.C. and I. R. Molloy, for the appellant.

K. B. Egan, for the State.

Cur. adv. vult.

28 March 1979

PRENTICE CJ ANDREW J: This is an appeal against the conviction of the appellant at the June sittings 1978 of the National Court at Mt. Hagen, for unlawfully and indecently dealing with a girl under the age of twelve years.

The original notice of appeal contained three grounds for appeal and the matter first came on for hearing before this court on 2nd November, 1978. Counsel for the appellant then made application to amend the notice of appeal by adding an additional five grounds. Counsel for the respondent objected to this course on the basis that he was taken by surprise and that in any event he needed further time in which to consider whether or not the court had power to allow the extra grounds to be so added. The hearing of this application and of the appeal was adjourned and taken out of the list generally. Only one ground of appeal is now being pursued, that being one of the proposed fresh grounds. Counsel for the State again objects to this course on the basis that the proposed new ground amounts to a fresh notice of appeal being lodged and that the appellant is now well outside the time limit contained in s. 27 of the Supreme Court Act 1975.

We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down by s. 27 of the Supreme Court Act 1975.

The proposed ground of appeal is: “That the court did not satisfy itself that the witness Dinah Popondi was competent to give evidence”. It appears to us that in the special circumstances of this case where the respondent is not now taken by surprise and where the original adjournment was granted at the request of the respondent, then as no prejudice could be said to have arisen, we propose in the exercise of our discretion, to allow the amendment.

The point of the appeal is whether or not the learned trial judge complied with the provisions of the Oaths, Affirmations and Statutory Declarations Act 1962. It was not in dispute on the trial that the witness Dinah Popondi, who was the prosecutrix, was under the age of twelve. It seemed that she was aged nine or ten. Upon her being called to give evidence, the trial judge, having observed her, inquired of the prosecutor as to her age. He then asked the prosecutor whether she could be sworn or whether she would understand the nature of an oath. He was informed that she either should not be sworn or that she would not understand the nature of an oath. The witness was then affirmed and gave her evidence in pidgin.

The Oaths, Affirmations and Statutory Declarations Act Pt III, provides that a person may, instead of taking an oath, make a solemn affirmation in the form prescribed by the Act. For the purposes of this appeal the relevant sections are as follows:

18.     Where a person:

(a)      called as a witness in a court or before a justice or other person authorised to administer an oath, whether in a civil or criminal proceeding;

(b)      having to make a statement in an information, complaint or proceeding in a court or before a justice or other person authorised to administer an oath; or

(c)      required or desired to make an affidavit or deposition,

objects to taking an oath, is reasonably objected to as incompetent to take an oath or appears to the court, justice or person so authorised incompetent to take an oath, or desires or is required to take an oath in a form and manner required by his religion to make it binding on his conscience but which it is found to be impracticable to administer to him in that form and manner at the time when and the place where the oath is desired or required to be taken, he may instead of that oath:

(d)      when so called as a witness make a solemn declaration or affirmation in the form in the Twelfth Schedule; or

(e)      in any other case make a solemn declaration or affirmation in the form in the Thirteenth Schedule.

19(1)  Where a person called as a witness in a court or before a justice or other person authorised to administer an oath, whether in a civil or criminal proceeding, appears to the court, justice or person authorised to be incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration or affirmation referred to in the last preceding section, the court, justice or person authorised shall, if satisfied that the person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner the evidence of that person shall be taken, and when evidence is so taken the same consequences follow as if an oath had been administered in the ordinary manner.

(2)      Nothing in the last preceding subsection contained shall affect or be deemed to affect in any way the operation of any law or rule of law or practice relating to the corroboration of evidence.”

The point taken is that the learned trial judge purported to act under s. 19 of the Act and that when it became apparent that the witness was incapable of comprehending the nature of an oath there should have been at that point, a further inquiry as to whether the witness understood that she was liable to punishment if she gave false evidence before the affirmation could have been administered. We shall return to this point.

Counsel for the respondent contends that the trial judge did not purport to proceed under s. 19 of the Act but rather under s. 18. We are not persuaded that this is so. That section deals expressly with four possible events which may occur when a person is called as a witness in civil or criminal proceedings:

1.       The witness may himself “object to take an oath”;

2.       The witness may be “reasonably objected to as incompetent to take an oath”;

3.       The witness may “appear” to the court “incompetent to take an oath”; and

4.       The witness may himself “require to take an oath in a form which it is found impracticable to administer”.

The majority view in Cheers v. Porter[lxii]³, where the High Court in Australia had cause to consider a similar section of the Oaths Act, 1900 (N.S.W.), was that the section was wide enough to include the competence or otherwise of a child to be called as a witness and to take an affirmation. The minority view (including the judgment of Dixon J. as he then was) was that the section authorised an affirmation when the incompetence of the witness did not arise from immaturity. We do not have to decide this point. Clearly what is being looked at by s. 18 of our Oaths, Affirmations and Statutory Declarations Act 1962 is more generally the situation of the persons called atheists or persons without religious belief and with non-Christians.

Further, had the trial judge purported to proceed under s. 18 of the Act he would then have been required by the terms of the section to administer an affirmation in the form in the Twelfth Schedule of the Act. This he did not do and in fact an affirmation was given which is commonly used by the National Court and is in accordance with the terms of s. 19 of the Act.

Thus, where it appears that a child is incapable of comprehending the nature of an oath the manner in which his or her evidence shall be taken is laid down by s. 19 of the Act.

In our view it is only necessary to consider the effect of that section. We pause to note however that all of the Australian States make provision for the reception of unsworn evidence from children. In all States this applies to both civil and criminal proceedings and in three States an age limit is fixed (Victoria fourteen years; South Australia ten years; Western Australia fourteen years). Where no age limit is fixed and the statute merely refers to a child of tender years, the decision as to whether a child comes within this description is a matter for the good sense of the court: R. v. Campbell [lxiii]⁴.

In the report of the trial judge under r. 33(d) of the Supreme Court Rules 1977, the form of the affirmation which was administered has been set out in full. It contains the following:

“Sapos stori bilong yu i no kamap tok tru tasol baimbai yu inap kisim bikpela trabel.

Yu klia gut long dispela samting?”

The report then continues. The first time the witness did not answer. The question was repeated: “Yu klia long dispela?” Answer: “Yes.” Further,

“I did not embark on any preliminary examination of the witness concerning her capacity for understanding the nature of an oath in view of what Mr. Karczewski told me. Having satisfied myself that she understood what Mr. Turukai had told her in a language she fully understood, I then permitted her to give evidence and from that point closely observed her demeanour and capacity to follow the questions she was being asked.”

In these circumstances we are well satisfied that the provisions of s. 19 of the Act have been complied with and that the trial judge acted with the “good sense” as outlined in Campbell’s case[lxiv]⁵. It is quite clear that his Honour’s mind was directed to the very point whether or not the witness understood that she was liable to punishment if she did not tell the truth. We are not persuaded that this inquiry must of necessity precede the actual affirmation. The very words of the affirmation itself are designed to ensure that this is brought home to the witness.

The importance of the affirmation is that whilst the witness might be ignorant of the nature of an oath, he or she must be alive to the duty of veracity. That inquiry was adequately made. Even if we were wrong on this point it is clear to us that the trial judge impliedly complied with the section and we are unable to see how it could be said that there has been a miscarriage of justice.

We would give leave to amend the notice of appeal; dismiss the appeal and confirm the conviction and sentence.

RAINE DCJ: After a trial, the appellant was convicted in the National Court of indecently dealing with a girl under the age of twelve years, one Dinah Popondi. He was sentenced to two years’ imprisonment with hard labour, and appeals against the conviction. Originally he also appealed against sentence.

When the appeal came into the list for hearing in 1978 senior counsel from Sydney appeared for the appellant and sought leave to add to the grounds of appeal. This caught the State by surprise and the matter had to be adjourned.

Now another Sydney senior, Mr. McAlary of Queen’s Counsel, appears for Schubert. He too seeks to add additional grounds of appeal. But he now abandons all but one of them, and he also does not persist with the original or the earlier amended grounds.

The court indicated that it would hear argument as though leave to amend had been granted by it, and rule on the amendment later, and on the appeal itself, if leave was granted.

Speaking for myself, but I think my brethren hold the same view, there is far too much of this going on. I am well aware of the pressure on busy counsel, but the pleader who drafts or settles a notice of appeal should be no less careful with it than with any other pleading. And the pleader knows that there are time limits under the Supreme Court Act 1975 and Rules.

There will, of course, be accidents from time to time, counsel get sick, papers get lost in the mail, the pleader, if not counsel at the trial, is misled by the transcript, and so on. What I complain about is these afterthoughts, when, as I see it, counsel should have entertained the thought long before, rather than a day or so before the hearing day.

None of this is directed at Mr. McAlary, he has only just come into the matter, I suppose the previous leader was unavailable.

Despite all the above matters, I have formed the view that leave can be granted here, but the profession must not regard this as a precedent. Why do I take this view? Mainly because of the sudden change of counsel, the fact that Mr. McAlary did not waste time on grounds which, as he abandoned them, I imagine he viewed as not up to the mark, and also, whilst not over-impressed with the broad merits of the point taken, I felt it would be useful for the ultimate court of appeal here to say something about it, for it has not been discussed before as far as I am aware.

I have stated the ground. What happened was this. The prosecutrix was only about nine years of age. The judge in his report tells us that he observed immediately that she was very small. The prosecutor informed the judge, as the latter recorded in his notes: “She is aged nine going on ten.” His Honour then asked the prosecutor whether she could be sworn, or, possibly, whether she would understand the nature of an oath. His Honour cannot remember which way he put it, but it matters not. Counsel then indicated that his view was that she either should not be sworn, or that she would not understand the nature of an oath, and asked that she be affirmed, giving her evidence in Pidgin. The learned trial judge then noted in his notes “affirmed in pidgin”, and the associate administered the affirmation in the usual way, including the usual exhortation to tell “bikpela jas” the truth, and the usual warning that there would be “bikpela trabel” if she “tok giaman”.

Mr. McAlary’s complaint is that the procedure adopted did not comply with what is required by s. 19 of the Oaths, Affirmations and Statutory Declarations Act 1962. Section 19 reads:

“19(1) Where a person called as a witness in a court or before a justice or other person authorised to administer an oath, whether in a civil or criminal proceeding, appears to the court, justice or person authorised to be incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration or affirmation referred to in the last preceding section, the court, justice or person authorised shall, if satisfied that the person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner the evidence of that person shall be taken, and when evidence is so taken the same consequences follow as if an oath had been administered in the ordinary manner.

(2)      Nothing in the last preceding subsection contained shall affect or be deemed to affect in any way the operation of any law or rule of law or practice relating to the corroboration of evidence.”

(Note: I do not propose to deal with s. 18. It deals with a totally different situation. I do not agree with Mr. Egan here.)

Mr. McAlary therefore submits that what was said by Dinah, following an improperly administered affirmation, was “a nothing”.

Was the course followed correct? In my respectful view it was not although I am strongly of opinion that, if I am correct, and the letter of s. 19(1) was not observed, that the requirements of the subsection were observed in the spirit by his Honour.

In my opinion. s. 19(1) envisages that the court is first alerted, is put on notice that the witness may “be incapable of comprehending the nature of an oath”, etc. Then, on being so alerted, I am strongly of opinion that the court, alerted as to the uselessness of administering an empty oath, must itself examine the witness and make sure that the latter clearly understands that he or she can be punished if his or her evidence is false. This is quite easy to communicate to small children.

This done, and done successfully in the court’s opinion, the court directs and declares how the evidence shall be taken. In this country I imagine a judge would generally instruct his associate to affirm such a witness in the way done with Dinah, laying special emphasis on the punishment aspect. Or he might do it himself.

Thus it will be seen that I believe there are three distinct phases, or requirements. In my opinion the learned trial judge telescoped the second and third of these.

But where, as things turned out, was the harm here? The accused was represented. No complaint was made to the judge. The child was warned about punishment, the judge observed her from first to last.

In my opinion this is a very clear case for the application of “the proviso” (see s. 22(2) of Supreme Court Act).

I do not regard the technical breach of s. 19(1) as, as it were, erasing Dinah’s evidence from the record of proceedings. There was a rather similar case in England. See R. v. Surgenor[lxv]⁶, under a somewhat similar section. Humphreys J. who delivered the judgment of the Court of Criminal Appeal, said:

“There may be cases in which the court might quash convictions in those circumstances, but this case is not one of them. The court is satisfied that there was no miscarriage of justice in this case. There has been nothing more than an irregularity ...”

It is not lost on me that in Surgenor[lxvi]⁷ the evidence of the unsworn child was of lesser importance than the evidence of Dinah in this case. But Dinah, although made the “cornerstone”, as Mr. McAlary put it, of the State’s case, was not the only witness the State had against Schubert. There was a damning s. 103 statement made by the appellant, recorded by a most able and conscientious magistrate at the committal proceedings.

I would grant leave to amend the grounds of appeal, and grant leave to appeal generally. In my opinion the appeal against conviction and sentence should be dismissed and conviction and sentence should be affirmed.

Leave to amend notice of appeal and appeal generally.

Appeal dismissed; conviction and sentence confirmed.

Solicitors for the appellant: Craig Kirke & Wright.

Solicitor for the State: K. B. Egan, Public Prosecutor.

[lx]Section 19(1) of the Oaths, Affirmations and Statutory Declarations Act 1962 provides:

Where a person called as a witness in a court or before a justice or other person authorized to administer an oath, whether in a civil or criminal proceeding, appears to the court, justice or person authorized to be incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration or affirmation referred to in the last preceding section, the court, justice or person authorized shall, if satisfied that the person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner the evidence of that person shall be taken, and when evidence is so taken the same consequences follow as if an oath had been administered in the ordinary manner.

[lxi]Section 22(2) of the Supreme Court Act 1975 provides: The Supreme Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

[lxii](1931) 46 C.L.R. 521.

[lxiii][1956] 2 Q.B. 432.

[lxiv][1956] 2 Q.B. 432.

[lxv] [1940] 2 All E.R. 249, at p. 251.

[lxvi] [1940] 2 All E.R. 249.