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Abiari v The State (No 2) [1990] PNGLR 432 (31 October 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 432 - Ted Abiari v The State (No 2) 

[1990] PNGLR 432

SC397

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ABIARI

V

THE STATE (NO 2)

Waigani

Kapi DCJ Amet Los JJ

1 August 1990

3 August 1990

31 October 1990

APPEAL - Evidence - Additional evidence - Leave to adduce granted - Right to call evidence in rebuttal - Practice and procedure on leave application discussed - Supreme Court Act (Ch No 37), s 8 - Supreme Court Rules, O 7, rr 60, 63.

Held

Where leave is granted to admit additional evidence on appeal to the Supreme Court pursuant to s 8(1) of the Supreme Court Act (Ch No 37) where the court “thinks it necessary or expedient in the interests of justice to do so”, there is a right to call further evidence in rebuttal of that additional evidence.

Discussion (by Kapi Dep CJ) of the requirements of the Supreme Court Rules, O 7, rr 60, 63, relating to the requirements for filing affidavits on applications for leave to adduce additional evidence.

Cases Cited

Abiari v The State [1990] PNGLR 250.

Browne v Dunn (1894) 6 R 67.

John Peng v The State [1982] PNGLR 331.

R v Cleghorn [1967] 2 QB 584.

R v Frost [1839] EngR 1190; (1840) 9 C & P 129; 173 ER 771.

R v Joseph (1971) 56 Cr App R 60.

R v Milliken (1969) 53 Cr App R 330.

Appeal

This was the hearing of an appeal against conviction of murder in which leave to adduce additional evidence had been granted: see Abiari v The State [1990] PNGLR 250.

Counsel

G Langtry and P Yayabu, for the appellant.

S L Soi, for the respondent.

Cur adv vult

31 October 1990

KAPI DCJ: In this matter the Court heard an application to admit further evidence upon the hearing of the merits of the appeal. The Court ruled by a majority, enabling the appellant to call two witnesses: see Abiari v The State [1990] PNGLR 250. The Court heard oral evidence from two witnesses, namely Adolf Afasi and Peter Ruagura. At the conclusion of their evidence, Mr Soi, counsel for the State, then applied to call further evidence to rebut the evidence given by the two above-mentioned witnesses.

It is clear that, under s 6 of the Supreme Court Act (Ch No 37), the State may apply to introduce fresh evidence: see John Peng v The State [1982] PNGLR 331.

I have no doubt that the State would have the same right to invoke s 8 of the Supreme Court Act. Application to call rebuttal evidence in answer to the appellant’s further evidence would no doubt come under the wide powers of the Court under s 8 of the Supreme Court Act.

The Rules provide for an application to call additional evidence in the Supreme Court.

Under the Supreme Court Rules (Ch No 37) an applicant must give notice of the nature of the evidence sought to be called (O 7, r 60(a)) supported by affidavits stating the grounds of appeal (O 7, r 60(b)). This notice must be given 21 days before the hearing date (O 7, r 62). The appellant had complied with these provisions and gave notice and copy of the supporting affidavits in plenty of time.

The rules envisage that the other parties to the appeal may give evidence in rebuttal by affidavit to be filed no later than 14 days before the hearing of the appeal (O 7, r 63).

The respondent gave no notice of any evidence to be called and the appellant was surprised when the application was made at the hearing. The appellant naturally objected. I pointed out during the hearing that the practice was that the respondent should provide the nature of the evidence in an affidavit. Unfortunately, our attention was not drawn to the Supreme Court Rules and the Court proceeded without any proper consideration given to the need or otherwise of the requirement for an affidavit under O 7, r 63.

The reason for the notice and supporting affidavits is important. This informs the other party as well as the court as to the nature of evidence to be called so that the other party may not be caught by surprise. That of course is not the only reason but seems to me to be the obvious one. There is hardly any good reason for dispensing with this requirement in this case under O 7, r 63. The State knew the nature of evidence to be called by the appellant and there was no excuse for not filing affidavits in rebuttal.

Despite these requirements, the Court granted leave to the respondent to call further evidence. In view of the matters I have pointed out, this was a generous ruling.

To make matters worse, counsel for the respondent then applied to have the case adjourned to an unspecified date because his witnesses were not available to give evidence. It is clear that not only did the State not prepare any affidavits but they did not even know where the witnesses were. If they had the witnesses ready in Madang to be flown over to Port Moresby, that would have been a different case altogether. In this regard, I asked counsel what steps they had taken in preparing tickets to fly these witnesses over. His answer was not satisfactory. I went as far as suggesting a short adjournment of the case to enable counsel to produce evidence of steps taken by way of providing air ticket and a possible date when they might fly these witnesses over. Counsel did not take up the offer. All he needed to do was to produce evidence of a warrant for air tickets or air tickets to show that they had done everything possible to bring the witnesses for hearing. I can only reach the conclusion in the absence of any evidence that the State had not prepared any affidavits when they received notice of application by the appellant twelve months before this hearing. Not only that but they made no attempts to bring their witnesses when they were notified of the hearing date a month before.

When a case is set down for hearing, it should be heard unless an application to adjourn the case is made. The onus is on the applicant to satisfy the court that in the interests of justice, the hearing of the appeal should be adjourned.

I have already dealt with the conduct of counsel for the respondent. His behaviour is not only inconsistent with the rules of court but failure on his part to bring witnesses to the hearing of the appeal is not consistent with the administration of justice.

Contrasted with this is the behaviour of the appellant. He has given notice in accordance with the rules and has come for the hearing of this case with two witnesses whom he had flown down from Madang. This man has done everything required of him and is entitled to have his appeal dealt with in accordance with s 37(15) of the Constitution.

Considering the fact that the appellant has prepared his case and has brought his lawyers as well as witnesses, it would be unjust to delay the determination of this case.

There are two sides to the issue and I am not the least convinced in the circumstances of this case to exercise my discretion in the State’s favour.

[His Honour then considered the merits of the appeal having regard to all the evidence including the two witnesses who have given evidence on appeal, in a manner not calling for report, and concluded:]

Under the Supreme Court Act, the Court has power to order a re-trial. I find that in this case it would be in the best interest of justice to enable the State to investigate the strength of its case in the light of the further evidence given on appeal and consider whether to further prosecute the appellant. I would order that there be a re-trial of this matter before another judge in the National Court.

AMET J: This appeal has raised important issues relating to exercise of discretion in matters of practice and procedure both before the Supreme Court on appeal and the National Court on trial. I deal with these first before coming to the substantive merits of the appeal.

SECTION 8 — SUPREME COURT ACT

The appellant was granted leave by the majority of the court to adduce evidence of two witnesses pursuant to s 8 of the Supreme Court Act (Ch No 37). I had the misfortune to differ from the majority. The evidence of the two witnesses Adolf Afasi and Peter Ruagura was not “fresh evidence” as has been commonly interpreted under s 6 of the Act, and so it would not be proper to refer to it as “fresh evidence”. The application of these two sections was discussed in the judgment granting leave: see Abiari v The State [1990] PNGLR 250.

RIGHT TO CALL REBUTTAL EVIDENCE

A brief account of the circumstances in which the hearing of the appeal proceeded is necessary to understand how the several issues of practice and procedure arose. At the resumption of the hearing of the appeal for the appellant to adduce the evidence of the two witnesses, the State prosecutor was not available. After a morning adjournment the Court refused a further adjournment in the afternoon and the appellant proceeded to adduce the evidence of the first witness, Adolf Afasi. His evidence relating to the lighting and alleged conspiracy therefore remained untested because there was no counsel for the respondent/State to cross-examine on it. Counsel for the State was available to cross-examine the second witness, Peter Ruagura, the next day.

At the conclusion of the evidence called by the appellant, the issue arose as to whether the respondent/State had a right, or ought to be given leave, to call rebuttal evidence, if leave be necessary. Counsel for the appellant strenuously opposed the application by the respondent. It was suggested as a possible basis for refusing leave, if it were a matter requiring leave, that the State had not given any indication or made application at the same time as the appellant made application, at the outset, that it wished to call rebuttal evidence. Secondly, it was suggested that the respondent/State ought to have filed affidavits of the proposed evidence, also at the outset. These may be grounds for refusing leave to the State to call rebuttal evidence, it was suggested.

I consider these two suggestions to be quite misconceived. They are founded on a misconception of the principles applicable to calling of evidence in rebuttal. The procedure and the principles applicable in this instance have been made a little more difficult of understanding and application by the amplified scope of the operation of s 8 as interpreted by the majority of the Court. Given this new scope of the operation of s 8, it is necessary to restate the principles applicable to the calling of rebuttal evidence to ensure that the same “interests of justice” is accorded to both the appellant and the respondent.

The calling of evidence in rebuttal arises more commonly in the trial situation. The classic formulation of the rules on this is that by Tindal CJ, in R v Frost [1839] EngR 1190; (1840) 9 C & P 129 at 159; [1839] EngR 1190; 173 ER 771 at 784, applied more recently in R v Cleghorn [1967] 2 QB 584 and R v Joseph (1971) 56 Cr App R 60:

“There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to be no reason why the matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.”

In R v Milliken (1969) 53 Cr App R 330, the Court of Appeal upheld the trial judge’s ruling to allow an application to call evidence in rebuttal. Lord Justice Winn said (at 333):

“Where the evidence sought to be introduced in rebuttal is itself evidence probative of the guilt of the defendant and where it is reasonably foreseeable by the prosecution that some gap in the proof of guilt needs to be filled by evidence called by prosecution, then, generally speaking, the court is likely to rule against the closing of any such gap by rebuttal evidence; but ... the evidence here was not evidence in any sense, probative of the guilt of the defendant, since it really consisted of no more than denials of the accusations of conspiracy and concoction of the charge made by the defendant, in his own evidence ... the evidence was to disprove the truth of the defence, which itself consisted of an affirmative attack upon the credibility and honesty of the police officer.”

It is sufficiently established that if a defence witness gives evidence either in chief or in cross-examination going to the character and credit of the witnesses for the prosecution, then evidence in rebuttal of that should be allowed as a matter of right.

The respondent/State had indicated it wished to call evidence in rebuttal of the evidence alleging conspiracy on the part of the State witnesses. In the common trial situation if this evidence was led by the defence without the allegations having been put to the State witnesses in cross-examination, I consider that the prosecution would be perfectly at liberty, as a matter of right, to recall its witnesses in rebuttal to put the allegations to them. This is the consequence of the rule in Browne v Dunn (1894) 6 R 67 that a line of defence proposed to be relied upon and evidence to be led of it must be put to the witnesses for the prosecution. Failure to so do will result in the evidence being given very little weight or criticised as of recent invention.

In the trial, of course, the prosecution or the plaintiff does not have to make application or give any indication that it wishes to call rebuttal evidence, until the conclusion of the evidence by the defence witnesses, for obvious reasons that only after the evidence has been adduced and tested under cross-examination can the decision be properly made by counsel as to whether it is at all necessary to call evidence in rebuttal. If the evidence was so discredited or did not stand up to proof then it would not be necessary to call evidence in rebuttal.

In my view the position on an appeal such as in this case, is the same in principle as in a trial. The evidence now allowed to be adduced, which was readily available at the time of the trial, and which was not put to the prosecution witnesses in cross-examination, must be allowed as a matter of right to be rebutted by the prosecution. As I indicated in my dissenting remarks to counsel, because the allegation by the appellant’s witnesses was that of conspiracy by the State witnesses, if the State elects to recall all the eyewitnesses whose evidence is impugned as being tainted by conspiracy, then it has the right to so recall such witnesses in rebuttal. The State must have the liberty to so elect at the conclusion of the evidence by the appellant after assessing its strength and after it has tested it in cross-examination. It cannot be denied this right because it is suggested it ought to have made application earlier, at the time the appellant was applying to call new evidence. It must reserve the right to decide after it hears the evidence of the appellant.

In this instance the Court granted the right to the respondent/State to call rebuttal evidence.

REFUSAL OF APPLICATION FOR ADJOURNMENT BY RESPONDENT/STATE

The State applied for an adjournment over the weekend to Monday to have its witnesses ready to be called to give evidence, it being a Friday afternoon and the witnesses having not yet arrived from Madang. The State did have the proofs of the witnesses’ evidence reduced into affidavits but the witnesses had not arrived in Port Moresby to sign them.

Once again the appellant opposed the application for adjournment. After a short adjournment, the Court decided by a majority to refuse the application by the respondent for an adjournment to call rebuttal evidence. I dissented from the majority. The Court only announced the decision with reasons to be published. The basic reasons as I perceived them from my brothers in the majority were the fact that the State did not have its witnesses ready and available to be called at short notice and did not explain, to the Court’s satisfaction, the steps it had taken to have the witnesses so available.

I have expressed my views of the law and the principles of practice and procedure and the right of the prosecution or respondent to call rebuttal evidence. These factors might go towards grant or refusal of leave if that was necessary. Once the right to call rebuttal evidence was granted these factors ought not be used again to deny the right by refusing of application for adjournment.

If the basis for the refusal of application for adjournment was that the respondent/State did not have its witnesses ready well in advance or explain satisfactorily the steps it had taken, then with the greatest respect it is founded on a misconception as to the right to call rebuttal evidence and when that right becomes available and exercisable. The respondent/State could only properly consider its option as to whether or not to call rebuttal evidence at the conclusion of the appellant’s evidence and not at any time before.

I express my strongest dissent to the almost arbitrary manner in which the application for adjournment by the respondent/State was refused. I am of the opinion that it was a wrong exercise of discretion. It was in my view wrong in principle and grossly unjust to the respondent.

Let me review briefly how this appeal has progressed to this point, to highlight why I consider the decision of the majority to be so unjust and more particularly not “in the interests of justice”. The appellant was granted leave by a majority to call two witnesses who were both readily available to the defence to call at the trial and whose evidence was known. This was held to be permissible on the interpretation the majority gave to s 8 of the Supreme Court Act (Ch No 37) on the basis that it was “in the interests of justice”. The first witness called by the appellant who gave evidence of an alleged conspiracy was not able to be cross-examined and tested as to this allegation, because the respondent/State was refused a second adjournment because of the non-availability of counsel. The respondent’s counsel was available to cross-examine the second witness called by the appellant. At the conclusion of the evidence by the appellant, the respondent was granted leave to call evidence in rebuttal of the allegations of conspiracy. The principal basis for this can only be “in the interests of justice”. This being the first time an allegation of conspiracy was made against the principal State witnesses, it was necessary “in the interests of justice” that those State witnesses against whom the allegation was being made be given the opportunity to rebut the allegations. I believe that the time frame over which the respondent sought the adjournment is important in considering the context in which the decision was made by the majority to refuse adjournment. It was Friday afternoon and the respondent only sought the adjournment to Monday. Over the weekend it would have the witnesses available. No real prejudice is caused to the appellant’s interests.

In all the circumstances of this appeal which I have been at pains to highlight, when the majority considered it in the “interests of justice” to grant leave to the appellant to call evidence alleging conspiracy, when the respondent was denied a further adjournment at the start of the appellant’s evidence and thereby allowed the evidence of alleged conspiracy to be adduced untested under cross-examination; when the respondent was granted leave to call evidence in rebuttal of the allegation of conspiracy, can it possibly be said to be “necessary or expedient in the interests of justice” to deny the respondent a short adjournment over the weekend to have its witnesses ready to call on Monday? Is it in the interests of justice to both the appellant and the respondent that such serious allegations of conspiracy which has been allowed to be made belatedly go untested and unrebutted? I do not believe that the exercise of the discretion by the majority in this way, in all of these circumstances can be “necessary or expedient in the interests of justice”.

More significantly the maxim, “justice must not only be done but be seen to be done”, in the eyes of reasonable and fair-minded ordinary citizens, would surely not have been enhanced by the course this appeal has taken, for the further following reasons. The consequence of the majority of the Court’s refusal to allow the respondent/State an adjournment, is in effect to deny the respondent the right to call evidence in rebuttal of the allegations of conspiracy. This means that the evidence of the appellant’s witnesses remained untested and prima facie uncontroverted. This Court now finds itself in the invidious position of assessing evidence of these two witnesses whom the Court has observed and heard give oral evidence, which by its own decision is untested, with the evidence heard and findings of fact made by the trial judge. (My emphasis.)

The further difficulty which confronts this Court is in relation to the specific findings of facts based upon the evidence of the eyewitnesses before the trial judge. These are the witnesses against whom allegations of conspiracy have been made. How is this Court able to make an assessment or determine their credibility before the trial judge vis-a-vis the allegations of conspiracy if they were denied the right to have it put to them. It is just not possible to make any definitive findings about the allegations of conspiracy against the prosecution witnesses in the trial, when these witnesses have not been given the opportunity to rebut the allegations and for this Court to view their demeanour and assess their credibility.

[His Honour then considered the merits of the appeal in a manner not calling for report, concluding:]

In the end result I am not persuaded that the verdict was against the evidence and the weight of the evidence at the trial nor with inclusion of this evidence on appeal can I be satisfied that, the learned trial judge erred in law in any way in finding the charge proved and convicting the appellant. I am not satisfied that, with the addition of this evidence, it would produce a reasonable doubt in the mind of the court if this evidence was adduced at the trial as well. Adding this evidence to all of the evidence that was before the trial court I cannot say that it causes me to have a reasonable doubt as to the guilt of the appellant. I would therefore dismiss the appeal and confirm the conviction and sentence.

LOS J: I deal with certain preliminary matters first. They are the application for fresh evidence, hearing in the absence of counsel for the State, right of the State to call rebuttal evidence, and refusal to adjourn for that purpose. When the appeal first came for hearing the appellant applied for leave to adduce fresh evidence to be considered together with the evidence already produced and relied upon by the National Court to convict the appellant. The application was adjourned for consideration and subsequently leave was granted to adduce fresh evidence: see Abiari v The State [1990] PNGLR 250.

The hearing of the proposed fresh evidence was set down for 1 August 1990. On this day, the appellant and his counsel were present but the State’s counsel, Mr Soi, was absent and in his absence Mr Noka appeared and explained the reasons for Mr Soi’s absence. The reason in brief was that Mr Soi was appearing before the National Court in Mt Hagen and that he was to leave Mt Hagen and arrive in Port Moresby that afternoon. The Court was then adjourned until 1.30 that day. When the Court resumed Mr Soi was still absent. The Court decided by majority to proceed in his absence.

On 3 August, Mr Soi appeared and apologised for his absence and explained the reasons: the flight he was to be on that day was cancelled and as a result he could not come to Port Moresby. The Court accepted his reason and allowed him to appear. He was able therefore to cross-examine the last witness called by the appellant on fresh evidence. At the end of the taking of the fresh evidence, Mr Soi sought to call rebuttal evidence. This application was opposed. The Court however, granted the application and called upon the counsel to call the witnesses. Counsel explained however, that the witnesses had not yet arrived in Port Moresby. The airline reservations had been made and it was a matter of them getting on the plane and flying them to Port Moresby. He applied for an adjournment for this purpose. He was asked to produce some evidence of the arrangement that had been made to bring the witnesses across from Madang. Apart from his words from the bar table, he however could not produce anything to show that the arrangement had been made. The Court by majority therefore refused the application for an adjournment.

I now give my own reasons for refusing to grant the application to adjourn. I had no doubt in my mind that when the appellant was granted leave to call the proposed fresh evidence, the State automatically acquired a right to call any evidence of rebuttal. In this respect, the State had ample time to get ready with the witnesses so that at the end of the appellant’s fresh evidence the State should have been in a position to call evidence if that was the course the State decided to take. Or at least it should have been in a position to produce an affidavit. But to wait until the appellant had completed the fresh evidence and then make an application to adjourn so that the State would organise to bring the witnesses to give rebuttal evidence, let alone sign their affidavits, is not a way to make use of the State’s right. This would be merely delaying the appeal. Any matter that comes on before the Court such as this appeal must reach its finality. The party who brings the proceedings must have a result whatever it may be. Comparative to an individual like the appellant, the State always has resources at its disposal.

[His Honour then considered the merits of the appeal in a manner not calling for report and concluded:]

In so far as the decision by the learned trial judge was based on the evidence before him, little can be said against it. But without what has been brought out in the fresh evidence it is my belief that injustice may be caused if the decision is let to stand. The situation warrants quashing of the conviction and ordering a new trial.

(By majority) Conviction quashed New trial ordered

Lawyers for the appellant: Mionzing & Associates, Lawyers.

Lawyer for the respondent: Public Prosecutor.