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Pen v the State [1997] PNGLR 289 (30 October 1997)

[1997] PNGLR 289

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BAKERI PEN

V

THE STATE

MOUNT HAGEN: HINCHLIFFE, INJIA, AKURAM, JJ
28, 30 October 1997

Facts

The National Court had convicted the prisoner/appellant on charges of abduction and rape and sentenced him to a term of 4 years (abducting) and 8 years (rape) respectively but to be served concurrently. At the trial, the defence witnesses were present in court throughout the entire case. Upon learning of that at the commencement of the defence case, the court indicated that it will give little weight to the defence witnesses. This prompted the defence counsel not to call those other defence witnesses presented in court.

Held

1. A trial judge should not expressly or by tacit implication prevent or hinder a witness from testifying simply because the witness was present in Court and heard the evidence during the trial. The evidence the witness gives is a matter of weight to be assessed at the end of all the evidence.
   
2. Where the trial judge indicated to a witness before she gave evidence that the Court would give very little weight to her evidence because she was present in Court; which in turn influenced the defence counsel not to call the witness: the Court, by tacit implication, prevented or hindered the witness from giving evidence. This amounted to a fundamental procedural error, which vitiated the trial for which a new trial was ordered.
   
3. Upon quashing a conviction, the court can order a retrial if the trial judge has committed a procedural error. Public interests in bringing to justice those guilty of serious crimes and ensuring that they do not escape liability because of technical errors in the conduct of a trial is a paramount consideration: Charles Ombusu v The State [1996] PNGLR and Madeline Kiso v Angela Manumanua [1981] PNGLR 244 considered and applied.
   

Cases cited

Charles Bougapa Ombusu v The State [1996] PNGLR 335.

Dinge Damare v The State [1991] PNGLR 244.

Epeli Daminga v The State SC491 (1995).

Gabriel Laku v The State [1981] PNGLR 350.

Madeline Kiso v Angela Manumanua [1981] PNGLR 507.

Counsel

Appellant in person.
J Kesan, for the respondent.

30 October 1997

BY THE COURT. On 5th May 1994 at Mount Hagen, the National Court convicted the appellant on charges of abduction and rape of a female, one Pelek Francis. The Court sentenced him to a term of eight (8) years for rape and four (4) years imprisonment for abduction, to be served concurrently. This notice of appeal essentially is one against conviction.

There are a number of grounds raised in the appellant’s notice of appeal which are further elaborated in his written submissions. Of those grounds, we believe our decision on the first ground of appeal is determinative of the fate of this appeal. In the first ground of appeal, the appellant says the judge erred in that "The six defence witnesses were not called in to give evidence in Court."

At the trial, the State case was based on identification of the accused as a participant in the abduction and subsequent rape of the victim in the night of Sunday, 16 October 1993 at Lyaporambo village, Western Highlands Province, by a group of young men. The State called several eyewitnesses including the victim, all of who identified the accused as a participant in the crime(s). The defence case was one of alibi. The accused gave sworn testimony in which he said on Sunday, 16th October 1993, he attended Church service at "9.30". After this, his mother and family gave him K5.00 to go to the Kaleta trade store to buy lamb flaps, which he did. He left his house at 5.10 pm and returned at 5.25 pm with the lamb flaps. The family cooked and ate the lamb flaps for dinner. He slept with his family. At the end of his evidence, the accused’s mother was called to give evidence. As to what transpired thereon is important. We set out part of His Honour’s notes, which appear at the Appeal Book page 53:

"Mother of Accused

Kelly PEN (Sworn Baiyer)

Objected to-been in Court during evidence.

Court ruling

She was present in Court all morning. Family were present. I knew they were the family from various indications. This is not denied. So the Court can attach very little weight to the evidence. When you intimated earlier in the week that there might be witnesses to be called I assumed we were thinking of other witnesses, not family witnesses.

Defence decides not to call witness.

Close of Defence case.

Submission of both parties.

See judgment on conviction".

In his decision on guilt, His Honour said this at p. 2 of his judgment (Appeal Book p. 55):

"The defence did suggest that there may be witnesses but at the beginning of the trial the defence did not seem to know who these witnesses might be. And after three days of the trial still had no witnesses. Although at the last moment defence said the mother and father of the accused had been sitting in Court during the case and particularly had been sitting in all morning when accused gave evidence. So little weight could be attached to the evidence of the mother and father".

After listening to the submissions of Mr Kesan on the issue of whether the trial judge committed a fundamental error in not being prepared to listen to the mother’s testimony because she was present in Court and heard all the evidence, we have no hesitation in reaching the conclusion that the trial judge did commit a fundamental error. First of all, the objection by the Prosecutor after the witness was sworn and ready to give her evidence was too late and should not have been entertained by the Court. Such objection should have been raised when the defence proposed to call the witness. After she was sworn to give evidence, the trial judge should have ruled out the objection and proceeded to hear the evidence of the mother. She was then open to be cross-examined on her evidence on the basis of, inter alia, her presence in Court and listening to the evidence. It would then have been a matter of weight for the trial judge to assess her evidence.

Second, we know of no rule of procedure or law that a witness for a party who is present in Court when witnesses give evidence cannot be prevented from giving evidence. The principles in fact are to the contrary. The law is adequately set out by the National Court, Kearney Dep. CJ presiding, in Madeline Kiso v Angela Manumanua [1981] PNGLR 507. We simply endorse what His Honour says at p. 509:

"Second, it may be that the magistrate refused to let the defendant testify because, as he said, "defendant was in court throughout the trial." I have seen many cases where magistrates have refused to hear witnesses for that reason; another common belief.

Again, that is not the law. An informant and a defendant have a right to be present at all times during the hearing of their case. Other witnesses should, in general, remain out of the hearing of the Court until they come in to give their evidence; see s 70 of the Act. A magistrate may permit a witness to remain in court and listen to other witnesses, before he testifies; but usually a magistrate would not allow him to remain. Suppose a magistrate orders all the witnesses present in the court to go outside the court, until they are called, but by some mischance one of them in fact remains in court? The law is very clear that even in such a case the magistrate cannot refuse to hear that witness’ evidence. See Moore v Lambeth County Court Registrar (2). Of course, it may be that the magistrate would not give much weight to the evidence of such a witness. It would be open to the prosecution to comment on the fact that he had heard the other witnesses. But as I say, no witness can be prevented from testifying simply because he "was in court throughout the trial"; and certainly a defendant, who has a right to be there in court all the time, cannot be so prevented."

In our view, a trial judge should not expressly or by tacit implication prevent or hinder a witness from testifying simply because he or she "was in Court throughout the trial". The Court should hear the witness and assess the weight of the evidence at the end of all the evidence. To indicate to a witness or the parties or their counsel that the witness’s evidence will be given very little or no weight before he or she has given her evidence amounts to tacitly preventing or hindering the witness from giving his or her evidence. The Court also cannot properly discuss the weight of the evidence to be given by a witness without having heard the evidence of the witness. Failure to observe these principles amounts to a fundamental error, which can vitiate a trial.

In the present case, we are of the view that the trial judge committed such a fundamental error. The mother of the accused was a material witness to support the defence of alibi. The trial judge’s comments in response to the prosecutor’s objection no doubt puts off the defence counsel and influenced him to decide not to call this witness. Despite not having heard the evidence of the accused’s mother and father, the trial judge in his judgment proceeded to discuss the weight of their evidence. All these actions of the trial judge breached the principles we have set out above.

The question remains as to whether a re-trial should be ordered. There is no doubt that the error committed by the trial judge in the present case was a procedural error. In Madeline Kiso v Angela Manumanua [1981] PNGLR 507, the National Court treated the magistrate’s error as a procedural error and ordered a new trial before a different magistrate. In Charles Bougapa Ombusu v The State [1996] PNGLR 335, the Supreme Court relied upon Madeline Kiso v Angela Manumanua, (supra) Epeli Dawinga v The State, SC491 (1995), Gabriel Laku v The State [1981] PNGLR 350 and Dinge Damare v The State [1991] PNGLR 244 and ordered a re-trial after quashing a conviction on a charge of murder and rape on a procedural error committed by the trial judge. The Supreme Court sets out a number of considerations, which are relevant in deciding whether a re-trial should be ordered. Of these, of paramount consideration was the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders committed by the trial judge in the conduct of the trial. What the Supreme Court said in that case as to the public interest with reference to the special crime situation in this country is equally apposite here. The Supreme Court said at p. 6:

"The special circumstances in the country at the present time in relation to the administration of criminal justice, is a circumstance that compels a re-trial. There is general concern in the community over apparent increase in incidents of serious crimes such as rape, robbery and unlawful killing."

In this case, even though the Appellant has spent a considerable period of time in custody, the public interest is so compelling that we should order a re-trial.

For these reasons, we allow the appeal against conviction; we quash the convictions and sentences of the National Court and remit the matter to the National Court for re-trial. The appellant is remanded in custody pending his re-trial. The appellant is entitled to apply for bail in the National Court. The matter is set down for mention at the National Court at Mount Hagen on Monday 3rd November 1997 at 9.30 am.

Appellant in person.
Lawyer for the respondent: Public Prosecutor.