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Gipe v The State [2000] PNGLR 271 (23 February 2000)

[2000] PNGLR 271

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SELA GIPE

V

THE STATE

MADANG: HINCHLIFFE, JALINA, SAKORA JJ
21, 23 February 2000

Facts

The appellant was charged and convicted for dishonestly applying to his own use the sum of K141,877.04, the property of Morobe Provincial Government. At the material time of the commission of the crime, he was employed by the Morobe Provincial Government as tax assessor. He was sentenced to 4 years imprisonment in hard labour. The trial had lasted for 12 days. During the trial, the trial judge had met the key State witness Sape Yapo, who was the assistant manager of the Lae Branch of the Bank of South Pacific (BSP) concerning a private home loan that he was negotiating with the BSP through Sape Yapo.

The appellant appealed against both conviction and sentence. Without basing it as a particular ground of appeal but in arguing his various grounds of appeals, the appellant submitted that the trial judge was unfair to him as there were certain personal contacts or meetings between the trial judge and one of the principal witness, Mr Sape Yapo.

Held

1. An allegation of bias against a trial judge is serious, because it affects the requirement for impartiality of judicial officers in the administration of justice.
   
2. The test to be applied in determining whether an accused had been denied a fair trial is as laid down by the Supreme Court in Boateng v The State [1990] PNGLR 342, that: "... whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible".
   
3. The question of whether or not justice had been miscarried has arisen because of the trial judge’s revelation in his judgment that he met with the witness Sape Yapo when the trial was still in progress.
   
4. In the interest of protecting the integrity of the judiciary and the rights of a person to a fair trial, where a question of disqualification by a judge or magistrate arises, either prior to the commencement of a trial or during a trial, counsel should obtain instructions from their clients and then inform the court of their client’s attitude as to whether or not the trial judge should continue to preside over the case.
   
5. Applying the test enunciated by the Supreme Court in Boateng v The State (supra) we are of the opinion that a reasonable and fair-minded person hearing of the meetings between the trial judge and one of the key State witnesses while the trial was in progress, would have had a reasonable suspicion that a fair trial for the appellant was not possible.
   
6. In order to ensure that justice is seen to be done, we allow the appeal and quash the conviction and sentence and order that a new trial be conducted.
   

Papua New Guinea case cited

Boateng v The State [1990] PNGLR 342.

Other case cited

R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490.

Counsel

Appellant in person.
N Miviri, for the respondent.

23 February 2001

BY THE COURT. The appellant was charged that he between 28 June 1995 and 18 July 1996 whist being employed in Lae by the Morobe Provincial Government as tax assessor dishonestly applied to his own use K141,877.04, the property of Morobe Provincial Government. He pleaded not guilty and after a trial over a period of about 12 days between 22 March and 17 August 2000, was then convicted. He was sentenced to 4 years imprisonment in hard labour. Two years of that sentence was ordered to be suspended if K92,761.00 was repaid within two years.

He has appealed against his conviction and sentence on the following grounds:

(a) I never misappropriated any monies and was not responsible.

(b) The conviction was unsafe and unsatisfactory and against all the evidence produced in court.

(c) The court could not have been satisfied beyond a reasonable doubt as to my guilt for the following reasons.

(i) The manner of identification was prejudiced to my defence.

(ii) The witness Martha Vaviha refers to meeting the boss of Internal Revenue in a room not occupied by me.

(iii) There was evidence of the monies paid to BSP Lae received and banked by Revenue Section, Morobe Provincial Government, when such evidence would have shown the monies paid to the Bank of South Pacific were replaced or refunded.

(iv) The handwriting experts’ evidence was unsatisfactory & fabricated.

(v) The evidence of eyewitnesses are unsatisfactory & fabricated.

(vi) The State did not produce any of my co-workers as witness against me except Bernie Jacobs nor excluded them from being the culprits when some of them looked like me and wore the same glasses.

(vii) The sentence was excessive, as the court did not accept arguments of receipt and the sales tax by Revenue Section supported by documentary evidence.

(viii) The evidence before the court showed I had not committed the offence.

In his detailed submissions he vigorously attacked the evidence of various State witnesses including Sape Yapo, the assistant manager with the Lae branch of the Bank of South Pacific. He said that the evidence against him was false and that he had been set up. That was clear, he said, because the trial judge acknowledged various unsatisfactory aspects of the evidence at p. 403 to 404 of the Appeal Book that:

"From my own analysis of the evidence, there are other important aspects of the State’s case — sorry there are other aspects of the State's case which raise concern, cause for concern. There were a total of 11 different what one might call unsatisfactory aspects of the State's case and I have discussed them fully in my judgement. I do not need to repeat those. I have canvassed the evidence of most of the State witnesses and the unsatisfactory aspect of the system of keeping records at the Morobe Provincial Government and the discrepancies in the various records kept by the provincial government. I have also discussed some of the unsatisfactory aspects of the State's four key eyewitnesses, for example, in the case of Sape Yapo. He clearly was given a problem request by a policeman on that day. He spoke to him a number of times, then he told him to go away so that he could check up with the proper people. He did go back and I am not sure if he did conduct inquiries with the Morobe administration at that time in the period. But he came back and made the closing bank cheque out to this particular man also wanted the cheque to be made out in his own name, not in the name of the account. So Mr Sape Yapo had all the opportunity to ring up someone in the Morobe Provincial Administration, establish the illegal nature of the account, then set up with the police and when this man came to collect that cheque sometime in the day, this man would have been caught red handed, handed over to the police and then there would not have been a trial like this."

But what the trial judge said above does not concern us unduly because he did consider other evidence which appeared to implicate the appellant as the perpetrator of the crime. What concerns us is the appellant’s submission that the trial judge was unfair to him as there were certain personal contacts or meetings between the trial judge and one of the principal State witnesses namely, Mr Sape Yapo. He referred us to p. 406 of the Appeal Book where the trial judge acknowledged such contacts or meetings:

"In conclusion I wish to state for the record that one of the State's key witnesses Mr Sape Yapo is the second person in the line of two staff of the Bank of South Pacific, Lae with whom I had personal contact with during the course of the trial and the circumstances are official business convenience when I was negotiating a home loan from the Bank of South Pacific. This was after he gave evidence and the defence went into evidence. This matter was brought to the attention of both counsels in my chambers and both counsels saw no need to object to my continuing with this trial. Thereafter a number of other exchanges took place between myself, Mr Yapo before judgement for purpose of completing the loan arrangements. But I must say that our contacts were purely professional. My judgement on his evidence is in no way affected by those interactions between us."

Consequently we do not propose to deal with the grounds of appeal but to first deal with the issue of unfairness or bias which in effect is what the appellant alleges here.

An allegation of bias against a trial judge is serious, because it affects the requirement for impartiality by judicial officers in the administration of justice. One of the rules of the underlying law relating to the control of judicial and administrative proceedings is the principle of natural justice the maximum requirement of which is to not only act fairly but to be seen to act fairly (Constitution s 59). The test to be applied in determining whether an accused had been denied a fair trial is well established in this jurisdiction in Boateng v The State [1990] PNGLR 342. In that case the trial judge's wife had been attending court several times and speaking to the victim while the appellant's trial for rape was in progress. He appealed against his conviction and sentence alleging that he was denied a fair trial because of the trial judge's wife's association with the victim. The Supreme Court held when allowing the appeal that:

"The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible."

The court explained the reasons for its decision at p 346:

"There is no suggestion of bias on the part of the learned trial judge and none was urged during the hearing by Mr Kariko. Also there is no question of the propriety of his Honour’s conduct of the trial.

It is also not suggested that the trial judge’s wife discussed the case with him. We reiterate the point that what we are concerned with here is the upholding of the principles that not only must justice be done but also it must be seen to be done.

The trial judge's wife has the right to attend any court and observe proceedings. But it is also to be observed that her association with parties or witnesses in a case might raise questions if she attends and sits in court or talks outside court with witnesses or parties. Whether or not a judge's wife actually influences the outcome of the case is important but it is not the point here. The point here is the reaction of a reasonable man or woman knowing the relevant facts that justice might have miscarried because of such association in or in the precincts of the court.

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.

In the National Court, all trials, civil and criminal, are entertained by judges sitting alone. It is therefore crucial to a fair trial and the actual appearance of a fair trial that spouses of judges not be seen in court or within the precincts of court associating with witnesses or parties in cases being tried by their husbands or wives.

What was said in R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123; [1983] 1All ER 490 at 494 is pertinent to this case:

‘Would a "reasonable and fair-minded person sitting in a court and" knowing all the relevant facts have a "reasonable suspicion that a fair trial for’ the appellant ‘was not possible"?’

It is our view that such a person knowing what we know from reading the affidavits of Messrs Gendua, Putty and Tamusio would have a reasonable suspicion that justice had miscarried in this case. In saying this we repeat what we have said already that there was no actual bias shown in the conduct of the trial by the learned trial judge."

The facts of the present case are quite different from Boateng v The State (supra). The question of whether or not justice had been miscarried has arisen because of the trial judge’s revelation through his judgement what actually happened during the trial.

We should add at this juncture in the interest of protecting the integrity of the judiciary and the rights of a person to a fair trial that where a question of disqualification by a judge or magistrate arises prior to the commencement of a trial or during a trial, counsel should obtain instructions from his client and then inform the court of his client's attitude as to whether or not the trial judge should continue to preside over the case. It seems to us in the present case that counsel for the appellant did not seek instructions from his client prior to his attendance upon the trial judge in chambers with counsel for the State and consenting to the trial proceeding.

Applying the test enunciated by the Supreme Court in Boateng v The State (supra) we are of the opinion that a reasonable and fair-minded person hearing of the meetings between the trial judge and one of the key State witnesses while the trial was in progress, would have had a reasonable suspicion that a fair trial for the appellant was not possible.

In order to ensure that justice is seen to be done we exercise the power given to this Court by s 155(4) of the Constitution, allow the appeal and quash the conviction and sentence. We order that a new trial be conducted. We further order that the appellant be released on bail in the sum of K200.00 on the condition that he appears at the next call over of the National Court in Lae and that he does not interfere with State witnesses.

Appellant in person.
Lawyer for the respondent: Public Prosecutor