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Tubol, The State v [1994] PNGLR 378 (12 April 1994)

PNG Law Reports 1994

[1994] PNGLR 378 - State v Sei Nakiking Tubol 

[1994] PNGLR 378

N1206

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SEI NAKIKING TUBOL AND 8 OTHERS

Lae

Sevua J

12 April 1994

CRIMINAL LAW - Criminal Practice Rules O 4 r 4 - Failure to give notice of alibi defence - Application for leave to call alibi evidence - Exercise of discretion - Onus of providing explanation for failure.

CONSTITUTIONAL LAW - Right to a fair hearing - Sections 37(3) and 37(4)(f) Constitution - Duration of representation by qualified counsel a factor.

Facts

The defendants were charged with wilful murder. Defence counsel failed to give notice to the prosecution of an alibi defence in accordance with the Criminal Practice Rules and, therefore, sought leave of the Court to adduce evidence of an alibi under O 4 r 4 of the Criminal Practice Rules. Defence counsel had been instructed for more than four months, but he was not ready for trial and did not inform the Court of his lack of readiness or seek an adjournment.

Held

1.       The Court has a discretion to grant leave to adduce evidence of an alibi under O 4 r 4 of the Criminal Practice Rules. That discretion is to be exercised judicially.

2.       The provisions of s 37(3) and 37(4)(f) of the Constitution give an accused person the right to a fair hearing and, therefore, may be raised in support of an application for leave to adduce alibi evidence. However, where an accused has been represented at all times by a qualified lawyer, the right to a fair trial may not be affected by a refusal to grant leave.

3.       The onus is on defence counsel to give reasons for failing to give notice of an alibi defence. In the absence of any explanation of the failure, the Court should not grant leave.

Cases Cited

Papua New Guinea case cited

State v Wer [1988-89] PNGLR 444.

Other case cited

R v Sullivan [1970] 3 WLR 210; [1970] 2 All ER 681; 54 Cr App R 389.

Counsel

R Saranduo, for the State.

C Inkinsopo, for the defendants.

12 April 1994

SEVUA J:  The nine defendants are indicted with wilful murder. Their trial commenced on 6 April after the defence requested an adjournment on 5 April, when the trial was listed to commence.

The State adduced evidence from five of its witnesses and has other witnesses to call. At this stage, the Court was informed that the State intended to call a witness whose name is not on the indictment to rebut the evidence of alibi the defence intended to adduce. It was at this stage of the trial that the Court learned, through the State, that the defence would be adducing alibi evidence. When the Court enquired further, the State counsel said that the defence had filed a notice of alibi on 5 April; however, O 4 r 4 of the Criminal Practice Rules had not been complied with. At my intimation that I would not entertain an application by the defence for leave to call alibi evidence, defence counsel sought an adjournment to address the Court on the question of leave. I, therefore, adjourned the trial on 9 April to yesterday to hear the application.

I will go over the history of this case, because I consider that, at the end of the day, one would be in a much better position to appreciate the reasons for the final outcome of this application.

Previously, Mr Langtry acted for these accused in a bail application, made sometime last year before Andrew J. The application was refused. I subsequently refused to entertain another similar application and urged Mr Langtry to apply to the Supreme Court, since bail had already been refused by the National Court.

On 1 November 1993, during the call over for that month, this matter was mentioned, then adjourned to 15 November for further mention. Mr Peter appeared for the State whilst the present defence counsel, Mr Inkinsopo, appeared for the defendants. Both sides did not have files then. On 15 November 1993, when the matter came for mention, the State indicated that it would call ten witnesses and its case would take about a week. The State was represented by Mr Saranduo, whilst the accused were represented by Mr Inkinsopo, who said he had obtained instructions and confirmed the trial. I listed the matter for trial before me 4 - 11 April. At that time, I was not aware that 4 April was a public holiday. When the matter was mentioned on 15 November 1993, nothing was said about alibi evidence or a voir dire, let alone the defence indicating that it had "brief" instructions. It will become apparent why I mention these aspects when one considers what defence counsel said yesterday.

After ascertaining that 4 April was an Easter holiday, the dates of trial were relisted to 5 - 14 April. Between 15 November and the trial date, the Court was never informed in writing or verbally that the defence would be adducing alibi evidence and that a voir dire would be involved. Had this information been provided to the Court, additional days could have been added to the eight days previously allocated to contain any contingencies.

On 5 April 1994, a conference between counsels (Messrs Poiya, Saranduo, Inkinsopo and Langtry) and Judges (Andrew J and Sevua J) was held in order to ascertain the availability of counsel for this case specially, as both Judges were not certain if Mr Langtry was still acting for the accused, since he was appearing before Andrew J in another matter. There was no State prosecutor available to present indictments except Mr Poiya, but he was on leave, and Mr Saranduo was unable to present indictments. These matters needed to be sorted out before both Courts commenced sittings that day. In that conference, when this matter was mentioned and I specifically referred to the duration of the trial, Mr Inkinsopo responded that it should take less than eight days. The point I emphasise here is that, either Mr Inkinsopo did not have instructions regarding the alibi and voir dire then or, if he did, he failed to give an indication. In Lae, it has become an unwritten rule in call overs or when listing cases for trials that, where a trial involves a voir dire or alibi evidence, those facts are recorded in the bench diary so that the trial Judges are aware and are informed of those aspects. In this case, these facts were not revealed.

When the case was called for trial in the mid-morning of 5 April, defence sought an adjournment to the next morning to have another conference with the accuseds. The adjournment was granted reluctantly and with a direction that the trial would commence on 6 April, with or without that conference being completed, since the Court was of the view that both the accuseds and their counsel had had more than adequate time to prepare their defence. I will reiterate here again that, even on that date, the defence did not indicate that it would or it intended to call alibi evidence and that there would be a voir dire. The defence again failed to give these indications when the trial commenced on 6 April. Was this a surprise or belated tactic employed by the defendants and their counsel? As the defence counsel had been involved since 1 November 1993, why did he not provide this information to the State and Court if his instructions covered these aspects of the trial? Or did he not have instructions and those matters were of very recent origin? These questions are left unanswered because no explanations have been given by the defence.

Last Friday, 9 April, when defence counsel indicated it wished to make an application for leave to adduce alibi evidence after revelation by the State as to the alibi evidence and the voir dire, I intimated that I would be loathe to allow the application. However, in fairness to the accuseds, I permitted this application to be made yesterday, with a direction that I needed to be referred to relevant Supreme Court authorities and would not waste time with hearing mere propositions.

In support of the application for leave to call alibi evidence made yesterday, the defence counsel referred me to State v Wer [1988-89] PNGLR 444, a decision of Brunton AJ, who held, inter alia, at 446 that:

"The discretion of the Court under 0 4 r 4 of the Criminal Practice Rules 1987 is to be exercised judicially. The mere fact that the necessary information was not given within the prescribed period does not, of itself, as a general rule, justify the court in refusing permission for the evidence to be called."

His Honour adopted and applied R v Sullivan [1970] 2 All ER 681. On the basis of that case, defence counsel submitted that I have a discretion, and that I should exercise that discretion in favour of his clients. What he failed to address this Court on was the basis for which His Honour in that case granted leave to the accused to adduce evidence of an alibi. I will revert to this aspect later.

At this juncture, let me reiterate that in the present case, the defendants, through their counsel, failed to serve a notice of alibi on the State Prosecutor within 14 days as required by O 4 r 4 of Criminal Practice Rules. That rule begins:

"An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the prosecutor written notice of particulars of the alibi and ..."

The Court notes that defence counsel acknowledged that O 4 r 4 is explicit in its terms and, further, that the accused have not complied with the rules. Nevertheless, he submitted that, as I have a discretion, I should exercise it in favour of his clients.

I consider that the Court has a discretion under O 4 r 4. The phrase, "without the leave of the Court," is the basis for that discretion, and I agree with His Honour Brunton AJ that it is a matter of discretion to admit the alibi evidence. I also agree that the discretion under O 4 r 4 is to be exercised judicially. By that, I take it that, as the presiding judicial officer having the authority of a Court of law, I have power to exercise personal judgment in that judicial capacity.

Defence counsel has also submitted that there are constitutional issues that I should consider, even if the rules were not complied with. These concern the right to a fair hearing. He referred to s 37 (3) and (4)(f), which are covered by Brunton AJ in his judgment. Whilst I agree with the constitutional and other aspects as discussed by His Honour there, I consider that counsel's submission in the present case was misconceived. Counsel had merely referred to s 37(3) and (4)(f) without explaining how those provisions would affect his clients' interest. In my view, that constitutional protection was applicable to Wer's case, but what was applicable in that case is not necessarily applicable to the present case. Whilst I acknowledge that an accused person is entitled to a fair hearing, each case must be distinguished. In this case, the nine accused are not being forced into trial and they have not been unnecessarily held in custody for an unreasonable period. They have had a little over four months to prepare their defence. They were represented at all times by a qualified lawyer. How, then, is their right to a fair hearing within a reasonable time affected? Counsel have not really put forth any persuasive arguments, and I will go no further than this. I hope by the time the facts of the present case are distinguished from the two cited cases, one will appreciate the basis for the exercise of the discretion in all three cases.

In State v Wer, the defence counsel did not get to Mendi until the day before the circuit commenced and, further, he had obtained instructions from his clients only a day before the trial. I quote from p 445: "Mr Wogaro then applied for leave to adduce evidence of an alibi out of time, stating that he had only obtained the instructions of his clients a day before the trial started and that he had hoped the procedures would be waived." On p 448, His Honour said, "The real problem with this application is that Mr Wogaro of the Public Solicitor's Office did not get to Mendi until the day before the circuit started. He did not interview the accused for the purpose of taking instructions (on his own admission) until the day before the trial began. That is not good enough. The failure of a lawyer, in a major case - wilful murder with multiple offenders - adequately to prepare his case, including the meeting of time limitations imposed by the Criminal Practice Rules, not only has the potential of prejudicing the client, but actually causes serious inconvenience to the Court. It then becomes open to form the view that the lawyer is in breach of duty either to the client or to the Court. Potential arguments that the Public Solicitor's office is under-resourced have to be reconciled with s 225 and s 23 of the Constitution."

In the English case of R v Sullivan, the accused had previously, on two occasions, appeared without a counsel. Two days before trial, he obtained legal aid. On the trial date, his lawyer wrote to the prosecutor and gave notice that he would be calling alibi witnesses. He supplied the relevant information such as names and addresses of the alibi witnesses, as required by s 11 of the Criminal Justice Act 1967, which is in very similar terms to our O 4 r 4. On the second occasion the accused appeared without a counsel, he was warned by the Court that he would not be permitted to call alibi evidence unless he has given the required notice within seven days. On the date of the trial, the Crown sought an adjournment for the express purpose of investigating the alibi information. The trial was then adjourned for three weeks. When the case resumed after the adjournment, the Court refused permission to the accused to call alibi witnesses.

In the present case, defence counsel, who has been appearing for the accused on previous occasions, received instructions on 14 November 1993. This fact was made known to this Court yesterday during the application. This is, therefore, not a case where counsel had obtained instructions from the accused a day or two before trial, as in Wer. In the present case, counsel had been in possession of instructions for more than four months, and I consider that was adequate time to prepare his clients' case. By this, I consider that he would have, in pursuance of his duty to his clients, considered and discussed any relevant defences available, including an alibi. I consider that he would have had ample time to file the necessary documents and serve them on the State; in this case, the notice of alibi. He failed in his duty, and he comes to this Court and asks for the exercise of the Court's discretion in favour of his clients as a remedial cure for his failure.

Defence counsel has, in my view, sought to justify this application by providing what I would term "The Public Solicitor's Under-Resourced" argument, which has become a common excuse before the Courts. Whilst I appreciate that argument, in my view, the Public Solicitor has recourse under ss 23 and 225 of the Constitution, and if he fails to utilise those provisions, this argument would become meaningless before the Courts. From the bar table and upon questioning the defence counsel, he said he had initially obtained "brief" instructions from the accused on 14 November 1993 for purpose of mention, since he was the only lawyer available in Lae that time. I accept this, because I was aware of that situation. But he also said another defence lawyer had been sent to assist him but had "overlooked this case." Counsel then said, "I realised that my plans had not been attended to and I had to do this myself."

The fact of the matter is, if counsel was not in a position to go to trial, he failed to take the appropriate steps. He neither advised the State nor the Court about his situation, and he failed to ask for an adjournment, either before the trial or at the commencement of the trial. He did not utilise the procedures under O 2 rr 6 and 7 of the Criminal Practice Rules and, in particular, he did not utilise rr 6(j) and 7(f). This procedure was available to him prior to the trial, and he did not use it. In my view, if he did not have instructions in respect of alibi until 5 April, the most obvious, wisest, and ethical thing to do was to inform the Court and, perhaps, seek an adjournment.

I consider that the present case is clearly distinguishable on the facts from the two cases referred to. The facts of those two cases are quite different from the facts of this present case. The circumstances surrounding the refusal of leave in the English case and the grant of leave in the PNG case are obvious. In the English case, when the case resumed, the appellant had by that date satisfied the seven days requirement in s 11 of the Criminal Justice Act 1967. When the Court refused leave to call alibi witnesses, it clearly fell into error. In the PNG case, defence counsel had obtained instructions from the accused just the day prior to trial. The Court granted leave for that reason and, in my opinion, the constitutional arguments of s 37(3) and (4)(f) became relevant in view of that time factor. In my view, those situations are quite different to the present case, and I consider that the facts of this case do not justify the exercise of the Court's discretion in favour of the defendants.

It is glaringly obvious that the accused have not established to the Court's satisfaction the basis or reason for which the Court's discretion should be exercised in their favour so that they can call alibi witnesses. All they have done is satisfy me that I have a discretion pursuant to O 4 r 4 of the Criminal Practice Rules. As I have adverted to earlier, I agree that the Court has a discretion under the rules. The question in this case is, what is the basis for the exercise of the Court's discretion in their favour? The defendants have not advanced any reason or explanation as to their lateness in giving the notice of alibi. They have not explained why they did not file their notice in time or the cause of their delay. I am asked to exercise my discretion without their satisfying me why I should exercise that discretion in their favour.

Of course, the exercise of discretion is subject to reason and to other considerations. Not all applications can be successful. The success of an application involving the exercise of the Court's discretion would really depend on the factual situation of a given case. All cases are not the same. In my view, for an applicant to succeed in an application for the exercise of the Court's discretion, the onus is on him to satisfy the Court of the basis for which the Court's discretion should be exercised in his favour. If he fails to discharge that onus, then he fails to get what he seeks. In this case, I am satisfied that granting or refusal of leave under O 4 r 4 is a discretionary matter. I am further satisfied that I can exercise that discretion one way or the other. However, I am not satisfied as to why the applicants want this exercise of discretion in their favour.

Because the accused have failed to establish a proper basis for which the Court's discretion should be exercised in their favour, it is the judgment of this Court to uphold the State's request that leave to adduce alibi evidence be refused. Accordingly, leave will be refused.

Lawyer for the State: Public Prosecutor.

Lawyer for the defendants: Public Solicitor.