Fancy, The State v [1994] PNGLR 548 (7 September 1994)

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PRACTICE AND PROCEDURE - National Court - Application to declare mistrial - There must be a real likelihood of bias - Objection must not be frivolous or futile.

PRACTICE AND PROCEDURE - National Court - Pre-trial conference - Criminal Practice Rules - Reading of depositions enables identification of issues and determination of duration of trials - Reading of deposition not threat to independence - Duty on lawyers and judge to make prior preparation to shorten trial on conspiracy.

CONSTITUTIONAL LAW - Right to trial within reasonable time - Once proceedings begin, must not be interrupted.

The accused was indicted on four counts of conspiracy to export drugs from Papua New Guinea. In the middle of the trial, the State made an application to the Court to declare a mistrial and abandon the proceedings in the interest of justice, pursuant to s 59(2) of the Constitution. The grounds were that the two previous rulings made by the presiding Judge were wrong and, secondly, the presiding Judge had read the depositions.

1. The Constitution demands that the accused must be tried by an independent and impartial court within a reasonable time. Once proceedings begin, they must not be interrupted.

2. The reading of depositions enables the listing Judge to identify relevant issues and predict the duration of the trials. This is not a threat to the independence of the court.

LOS J: After a week from when the accused was indicted on four counts of conspiracy to export drug, and in the middle of the examination-in-chief of the State's third witness, on 24 August, the State counsel indicated that an application would be made to the Supreme Court to review my two previous rulings. For that matter, I was asked to adjourn the proceedings overnight for a full submission to be prepared and made the following morning. Mr Gah gave a bare minimum of what the State's submissions would be. As against these skeletal submissions by Mr Gah, Mr Molloy, on behalf of the accused, advised that they would be opposing the application on three grounds. The first ground was that the Public Prosecutor, did not have a standing to seek review before the Supreme Court. On this proposition Mr Molloy relied on the Supreme Court decision in SC Review No 5 of 1987 [1987] PNGLR 216. The principle is summarised in the headnote:

"In the absence of statutory enabling provision the Public Prosecutor does not have power or standing to seek judicial review, pursuant s 155(2)(b) of the Constitution of a point of law on a demurrer to an indictment, that is, before arraingment and where there is no acquittal".

On the second ground, Mr Molloy argued that the State could not seek review unless there were no other remedies available. On this, the counsel relied on the case of Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. In that case the Supreme Court confirmed the statement of law applied in PNG v Kapal [1987] PNGLR 417, where the Court said at 421:

"One of the fundmental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provisions for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used..."

In the last ground, the counsel argued that it was unfair to the accused for the criminal proceedings, which had gone on for some time, to be interrupted by the State. On this argument, Mr Molloy relied on a Queensland case, R v Lewis; Ex parte AG (1991) 2 Qd R 294. At 302, Macrossan CJ said:

"In trials on indictment, justice demands that in all ordinary cases a trial once commenced should proceed through to conclusion on the evidence which the Crown has, in the usual way, disclosed to the accused in advance or on such of it as the trial Judge decides should properly be admitted. Dislocation of the trial or delay in the course of it has the potential for injustice to the accused, who remains in jeopardy until the trial is concluded."

The following morning, on 25 August, the State counsel advised that the State was not proceeding with the proposal to apply to the Supreme Court for a judicial review. Instead, the State would ask the National Court to declare a mistrial and abandon the proceedings. The State counsel argued that the court must do so in the interest of justice under s 59(2) of the Constitution. The first ground of the submission was that my two previous rulings were wrong. The secondly was that I had read the depositions.

"The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly".

On the claim that I have read the depositions, and on that basis I must disqualify myself, the State counsel referred to a National Court case, State v Ivoro [1980] PNGLR 1. I have tried to understand the State's argument, but still I am not clear. On the one hand, the argument was that I was prejudiced because I had read the District Court depositions. On the other hand, it is argued that I was misled and, hence, my two previous rulings were based upon my misunderstanding. Before discussing Joe Ivoro's case, let me establish as matters of fact what depositions that I have read that the State alleges are the cause for my prejudice. First, the District Court depositions relate to the charge of possession of drugs. On this charge, the accused was tried and acquitted before the District Court. These depositions were tendered by consent, and the State counsel has conceded to that.

The second aspect of reading of the depositions relates to the reading in general as part of my responsibility as a listing Judge. The State appeared not to have made a direct issue of this. As the events at the trial had gone at a fast rate, the counsel for the State might not have directed his mind to this aspect. I consider it is important to deal with it. Order 2 of the Criminal Practice Rules 1987 gives a wide power to a listing Judge to conduct a pre-trial review.

"Prior to the trial of a person to be charged on indictment application may be made by the accused or his lawyer or the Public Prosecutor for practice directions under this order".

"If no application is made under Rule 1 the Court may of its own volition list the matter for such directions".

"The hearings shall be attended by counsel briefed to conduct the trial or in special circumstances counsel specific instructed to deal with matters arising in hearing under Rule 6 of this Order".

(b) of the prosecution witnesses required at trial as shown on the committal documents and any notices of further evidence then delivered and of the availability of such witnesses;

(c) of any additional witnesses who may be called by the prosecution and the evidence that they are expected to give; if the statements of these witnesses are not then available for service a summary of the evidence that they are expected to give shall be supplied in writing;

(d) of facts which can be and are admitted pursuant to s 589 of the Code and which can be reduced to writing at the trial and of the witnesses whose attendance will not then be necessary;

(f) of exhibits which are to be provided and whether they are to be admitted by consent;

(g) of issues, then envisaged as to the mental or medical condition of any accused person or witness;

(h) of any point of law which may have arisen on trial, any questions as to the admissibility of evidence which then appears on the face of the papers and of any authority on which either party tends to rely as far as can be possibly envisaged at that stage;

(i) of the names and addresses of witnesses from whom statements have been taken by the prosecution but who are not going to be called and, in appropriate cases, disclosure of the content of those statements;

(k) of the order and pagination of the papers to be used by the prosecution at the trial and of the order in which the witnesses for the prosecution will be called;

(m) of any other significant matter which might affect the proper and convenient trial of the case."

"At a hearing under this rule application may be made by any party for an order relating to:

(f) and such other order necessary to secure the proper and efficient trial of the accused person".

The conduct of pre-trial conferences is necessary on every case that enters the National Court crimes list. The aim is to give the date and duration of the trial of each case as near as possible to reality. In relation to the proceedings before me, when the accused appeared before me the first time, I asked him why he was asking for 14 days and where his lawyer was. I asked him to bring his lawyer with him for a pre-trial conference the next time he came. But he came without a lawyer again, and also a number of times subsequently. On one of those occassions, in an open court and in the presence of the State counsel who was responsible for conduct of the pre-trial conferences, I reduced the 14 days to 10 days. To do that, I had to have a look at the relevant documents to give me some idea. This was done as part of my responsibility as the Judge Administrator and listing Judge. This practice is now accepted in many jurisdictions, and we have recently introduced it in Papua New Guinea. Reading documents is not to establish guilt or otherwise of an accused. The aim is to reduce any unneccessary trial time to try the real issues only. In a text book, Case Flow Management in the Trial Court by Maureen Solomon and Douglas K Somerlot (1987 edn, American Bar Association), the authors discuss judicial leadership and commitment in management of cases and warn that there may be a tendency for some people to fear that case management system may be a threat to judicial independence. They say at p 9:

"There will be a tendency for some judges to view the case flow management system as a threat to judicial independence. It is important to distinguish between independence in decision making and administrative independence. An effective case-flow management system, while requiring some sacrifice of administrative independence with respect to processes, should in no way threaten independent judicial decision making. Case flow management enhances the quality of justice by imparting rationality and predictability to the process and by minimising delay to disposition".

The idea of case management should not be so strange. Especially in conspiracy trials, prior preparation is necessary to shorten trials and a duty is not only on lawyers but also on judges to take necessary steps. There are strings of cases on this. I mention two for example R v Simmonds [1967] 2 All ER 399 and R v Maynard (1979) 69 Cr App R 309.

Let me return to Ivoro's case. The trial judge read the depositions when he was told that the accused were going to plead guilty. Indeed, they pleaded guilty and, on allocutus, they made certain statements inconsistent with their pleas. His Honour, therefore, decided to disqualify himself. On p 6 he said:

"After giving much consideration to this matter, I have decided to disqualify myself from presiding at the trial of these two counts. I have come to this conclusion because of the peculiar way in which the matter proceeded before me. I have read the papers on this matter and at one point proceeded to conviction on the basis of the evidence contained on the depositions. In so doing I have formed an opinion regarding the evidence to be called by the State at the trial. Consequently I would not be seen to be impartial in the trial of the issues. In coming to this conclusion, I have regard to the principles stated in the Queen and His Honour Judge Leckie; Ex Parte Felman (1978) 52 ALJR 155 at p 158:

'the principle is now established that a judge may not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced and impartial ... It must be a suspicion that a right-minded person would form'."

It should be apparent, and I consider it apparent, that the factual situation that had forced the trial judge in Ivoro's case to disqualify himself was very different from the facts that the State's counsel relies on to ask this Court to declare a mis-trial in these proceedings. I have tried to understand in what way the State says that I may be biased. Both the National Court and the Supreme Court have discussed s 59(2) of the Constitution. Before a judge can accede to an application to disqualify himself on the grounds of bias, there must be a real likelihood of bias, and the objection by a party must not be unprincipled, frivolous or futile. See The State v Sari [1990] PNGLR 48 and Kavali v Hoihoi [1986] PNGLR 329.

One of the most sensitive cases that the Supreme Court has ever dealt with was in relation to Boateng v The State [1990] PNGLR 342. This was an appeal from a trial Judge sitting on a criminal case where the accused was tried for rape in Rabaul. During the trial, the trial Judge's wife attended the court. At one stage she was seen openly in court sitting beside the victim in the case. The Supreme Court allowed the appeal, conviction was quashed, and a new trial was ordered. At p 346, the Supreme Court said:

"Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case."

I think, with respect, the real difficulty is not that anybody thinks I am biased or prejudiced but that the State finds it difficult to go around my first ruling of the 17 August, supported by the second ruling on 23 August.

The State insists on calling direct evidence of possession of drug by the accused. While that may be the strongest way to call evidence to strengthen the State's case, I consider that, on a charge of conspiracy, direct evidence on possession by an accused may not be necessary. A person may be guilty of conspiracy for participating in a different act, so long as that act is carried out in futherance of a common plot.

I consider that it is not only the State interest that must take prominence. The accused's interest must also be protected. The State is an abstract entity. It has the means and resources to go at length, but an individual is immediately affected as a person and his resources required to defend proceedings brought by the State. While the principle in R v Lewis demands continuity of cases when they begin, the Constitution and many cases also demand the same. Sections 37 and 59(2) of the Constitution demand the hearing of a charge against an accused by an independent Court and that the hearing be fair. Section 37(3) also demands that such hearing be within a reasonable time. See Re Criminal Circuit in Eastern Highlands and Simbu [1990] PNGLR 82. Justice is not-one-way thing, and I consider that my first ruling was fair to both parties. In that ruling, I said:

"I think that in a serious charge such as to conspire to export dangerous drugs, the State must in the interest of the people, take the offenders to a court of law and try them. I shall not, therefore, quash the indictment or stay the charges. However, to protect the accused's interest in this case, the State must avoid proving that the accused had in possession of dangerous drug, because he had already been dealt with and acquitted on this charge. How the State could do that successfully is the matter for the State".

What the State is doing is to interrupt the proceedings and go back to the drawing board. Comparatively, the State may suffer, but the accused may suffer more by going through the whole process again. I, therefore, refuse the application and order that the proceedings continue.

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Papua New Guinea Law Reports

Fancy, The State v [1994] PNGLR 548 (7 September 1994)

PNG Law Reports 1994