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State v Veisame [2004] PNGLR 13 (30 August 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

JENNY VEISAME

LAE: MANUHU AJ

30 August 2004

PRACTICE AND PROCEDURE – Mistrial – Miscarriage of justice – Relevant considerations.

Facts

The State applied to declare a criminal trial as a mistrial under the following circumstances: the judge first started the trial in September, 2003, but owing to his appointment to the Constitutional Office-holder's Leadership Tribunal he adjourned the trial. Shortly after he returned to sit on the Bench in January, 2004 and before the trial was completed his term as Acting Judge expired though he was subsequently reappointed and purported to continue the hearing in July, 2004, i.e. a 10 months delay. The application for mistrial was made on the Constitutional grounds of long delay of the trial and unfairness and on the assumption that –

"The commissioning of a judge is by law and when that commission expires whatever judicial function he has eases at expiry. Any reappointment does not authorise the judge to deal with former cases."

Held

1. A miscarriage will be declared if the State is able to prove that in the course of me presiding over the matter there has been or will be a miscarriage of justice and the declaration sought is the only appropriate remedy.

2. The specific allegations of miscarriage must have a bearing on my independence as a judicial office. In other words, there is no miscarriage of justice and I will continue to perform my constitutional function over the subject criminal trial if my judicial independence is not tainted.

3. The expiry of my appointment does not disable me from hearing the matter upon reappointment.

Papua New Guinea cases cited

Jeffrey Balakau v The State (1995) unreported.
Joshua Yaip Avini v The State [1997] PNGLR 212.
Kwame Okyere Boateng v. The State [1990] PNGLR 342.
PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC592.
The State v Augustine Lausi (2001) N2091.
The State v John Birch [1978] PNGLR 79.
The State v Peter Painke( No. 2) [1977] PNGLR 141.
The State v Stuart Fancy [1994] PNGLR 548.

Other cases cited

R v Lewis, Ex parte Attorney-General [1991] 2 Qd R 294.

Counsel

N Miviri, for the applicant.
S Maliaki, for the respondent.

30 August 2004

Manuhu aj. This is an application by the State for the criminal trial of the accused persons who have been indicted for misappropriating more than K327,000.00 to be declared a mistrial.

I commenced hearing the matter on 18 September 2003 and continued on 19, 22, 23 and 24 thereafter. The State's case remains incomplete. The trial was adjourned when I was appointed as a member of the Constitutional Officer-holder's Leadership Tribunal to investigate into leadership charges against former Auditor-General Mark Wani. The Tribunal concluded its investigation in January 2004, and attempts to have this matter completed before the expiry of my appointment as Acting Judge which was due on 13 March 2004 was not possible. The trial was thus in abeyance pending decision on extension of my appointment. I was thereafter reappointed and got sworn in on 9 June 2004. I then left for Mount Hagen for court circuit as directed by the Chief Justice. I returned to Lae in July and my attempt to have the matter fixed for continued hearing was met by this application.

As I understand it, the statutory grounds for the application are ss.37(3) and 59(2) of the Constitution. Section 37(3), reads:

"(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court."

For the sake of illustration I was referred to the cases of Jeffrey Balakau v The State (1995) unreported, where several years of delay was said to be "outrageously long"; and, The State v Peter Painke (No. 2) [1977] PNGLR 141, where s.37(3) was held to have been breached when it was 14-16 months since the commission of the offence, 11 months since the accused was committed for trial and six months since the case first went before the court for trial.

Section 59 (2) provides:

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

The State submits accordingly that this case has not been heard within a reasonable time. Since the adjournment, it is submitted, one of its witnesses, who was still giving evidence, could have had his evidence interfered with. "Where matters are yet in dispute and where there is a large break there is bound to be tainting of evidence," submits Mr. Miviri. He may have discussed his evidence with others thereby tainting his evidence. Besides, "the commissioning of a judge is by law and when that commission expires, whatever judicial function ceases at expiry. Any reappointment does not authorize the judge to deal with former cases."

Counsel for the accused objects to the application. It is submitted that the delay of only 10 months since the adjournment, is not unreasonable and the trial should continue. It is submitted that declaring a mistrial would be prejudicial to the accused persons' interest for a speedy trial.

I remind myself firstly that he who asserts bears the burden of proof. In this case, the State bears that responsibility. Secondly, as this is an application for the trial to be declared a mistrial, it is necessary to appreciate the various circumstances of miscarriage of justice and mistrial.

The first such circumstance may be found under the Supreme Court Act, which provides that if on an appeal against conviction the Supreme Court thinks that a miscarriage of justice has occurred, and having regard to all the circumstances, a new trial is the most appropriate remedy, the Court will order a new trial, PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC 592. The National Court is also vested with inherent powers Kwame Boateng v The State [1990] PNGLR 342, to declare a mistrial where a miscarriage of justice has or will occur. Unfortunately, these provisions specify the courts' powers but they do not clarify the various circumstances of miscarriage of justice or mistrial. Such circumstances could only be understood from past cases where the same question has arisen.

The question of bias, for instance, was raised in the case of PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (supra). The appellants were defending a statement of claim which alleged breaches of fiduciary duties. The grounds for the claim of bias were:

"1. On the 31 October 1995 the learned judge granted ex parte orders in the nature of Mareva injunctions and Anton Pillar orders.

"2. The Anton Pillar orders resulted in the plaintiffs personally as opposed to their lawyers gaining control of all the documents of PNG Pipes Pty Ltd, with no supervision at all.

"3. The Anton Pillar order was never executed and this fact was brought to the attention of the learned judge on 2 April 1996.

"4. The appellants sought discovery by the respondents on the 3 April 1996. The respondents failed to give discovery.

"5. On 3 May 1996 the appellants obtained an order from the court that the respondents give discovery within 14 days.

"6. The respondents again failed to give discovery, within the extended 14 days.

"7. On 24 May 1996 the appellants applied for orders that the respondent's claim be struck out for failing to give discovery within the extended time. The learned judge was fully cognisant of the respondents failure to give discovery.

"8. Notwithstanding this failure the learned judge has done nothing to remedy that situation.

"9. The continuing failure to give discovery has prejudiced the appellants in their application to discharge and vary certain orders, especially those ex parte orders of 31 October 1995, as the appellants were cross-examined using documents which should have been discovered.

"10. The appellants commenced contempt proceedings against the respondents for failure to allow inspection of the day to day documents of PNG Pipes, by the appellant, pursuant to order 5 of 1 March 1996.

"11. The learned judge declined to hear those proceedings.

"12. On 2 February 1996 the learned judge made certain orders, one of which included a supervision order in the following terms:

'That Mr. P. Payne or a nominee of his be appointed to oversee PNG Pipes Pty Ltd (the company) accounts, i.e. withdrawals and deposits.'

"13. The supervision order was never effected. Mr. Payne a lawyer with Blake Dawson Waldron made it plain that he could not supervise the affairs of PNG Pipes, and this matter was brought to the attention of the learned judge.

"14. The supervision order was repeated in the orders of 25 March 1995.

"15. On 30 April 1996 the court made protection orders in favour of the second appellant.

"16. On 9 July 1996 the respondent arbitrarily cancelled the orders.

"17. Contempt proceedings were brought before the learned judge, but he declined to deal with the application. He reinstated the initial orders.

"18. The appellants again fixed another day for the inspection of the day to day documents of the operations of PNG Pipes, for Friday 23 August 1996 at 1.30 PM. The respondents again refused this.

"19. Contempt proceedings were again brought, but again the learned judge declined to hear it. Instead the learned judge directed that the respondents give access on Friday the 30 August at 3.00 PM.

"20. Inspection did not take place as ordered by the court.

"21. The learned judge has consistently refused to reply to the appellants' lawyer's requests to hear the submissions in respect of having the orders discharged.

"22. The learned judge has failed to react to the lack of supervision of the PNG Pipes bank accounts and day to day operations.

"23. On several occasions when the lawyer for appellants had requested the learned judge to clarify Order 1 of the orders of 25 March, 1996, in relation to the meaning of "day to day control of the administration and management" of PNG Pipes by the first respondent, the learned judge has declined to clarify the orders."

The Supreme Court held that the trial judge's conduct of the proceedings, including refusing an application for disqualification, demonstrated that he was biased. The appeal was upheld and a declaration was made to the effect that the trial judge be disqualified from continuing to preside over the matter and the matter was assigned to another judge.

In Kwame Okyere Boateng v The State [1990] PNGLR 342, it was held that association of the trial judge's spouse with the complainant in court and outside court give the appearance that appellant may not have had a fair trial. A new trial was ordered. The manner of questioning of prosecution witness by trial judge could also result in miscarriage of justice. But in The State v John Birch [1978] PNGLR 79 where in a rape and unlawful carnal knowledge trial involving an immature native girl, there was no mistrial when the trial judge asked numerous questions to ascertain the facts. In Joshua Yaip Avini v The State [1997] PNGLR 212, not permitting counsel to make a no case submission is an irregularity, and not a miscarriage of justice.

In The State v Stuart Fancy [1994] PNGLR 548, in the middle of examination-in-chief of the State's third witness in a criminal trial, the State indicated that it would seek judicial review of two earlier interlocutory rulings. Eventually, the State abandoned its plan for judicial review and sought before the trial judge, relying on s.59 of the Constitution, that the trial be declared a mistrial on the grounds that the trial judge's two earlier interlocutory rulings were wrong and that the trial judge had read the committal depositions. On the other hand, the accused submitted, among others, that it was unfair to the accused for the criminal proceedings, which had gone on for sometime to be interrupted by the State. The accused relied on a Queensland case of R v. Lewis, Ex parte Attorney-General [1991] 2 Qd R 294, where Macrossan CJ said:

"On trials on indictments justice demands that in all ordinary cases, justice demands that 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 of injustice to the accused who remains in jeopardy until the trial is concluded."

The trial judge in The State v Stuart Fancy also said:

"It is not only the State's interest that must take prominence, the accused interest must also be protected. The State is an abstract entity, it has the means and strength 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 Ex parte Attorney-General demands continuity of cases when they begin, Papua New Guinea Constitution and many cases also demand the same. S. 37 and s. 59(2) of the Constitution demand the hearing of a charge against an accused by an independent Court and that the hearing be fair, s.37(3) also demands that such hearing be within a reasonable time.

"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."

The common denominator in all the cases I have referred to is that the trial judge was always a party or privy to various instances of prejudice or miscarriage of justice. In essence, it has to be shown that the trial judge's judicial independence has been or is perceived to be compromised by the manner he has conducted and supervised the trial. As demonstrated by the cited cases, the trial judge's judicial independence may be questioned by reason of his questioning of a witness, his spouse's association with a complainant, his refusal to entertain no case submission, and so on.

Understandably, whether a trial is concluded fairly or not, and whether justice is done according to law or not, is entirely dependent on actual and perceived independence of a judge. The Supreme Court has said so in PNG Pipes Pty Limited and Sankaran Venugopal v Mujo Sefa, Globes Pty Limited and Romy Macasaet (1998) SC 592 in the following manner:

"The test applied in determining whether apprehension of bias was satisfied [or whether there was miscarriage of justice] was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction, that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion."

It seems to me, therefore, that, in this application, the specific allegations of miscarriage must have a bearing on my independence as a judicial officer. In other words, there is no miscarriage of justice and I will continue to perform my constitutional function over the subject criminal trial if my judicial independence is not tainted.

As I apply the relevant principles to the circumstances of this case, I find, firstly, that whether a witness's evidence has been affected by the long adjournment is an in-house predicament of the State. It does not concern the judicial independence of a judge. In any event, counsel was submitting from the bar table. There is no evidence of interference with any of the State's witnesses.

Secondly, a mistrial will be declared if the State is able to prove that in the course of me presiding over the matter there has been or will be a miscarriage of justice and the declaration sought is the only appropriate remedy. There is, however, no evidence connecting my supervision and control of the trial with any instance unfairness.

Thirdly, the expiry of my appointment does not disable me from hearing the matter upon reappointment. Under s.576(1) of the Criminal Code, a trial may be discontinued where the trial judge becomes incapable of proceeding. Under subs. (3), if after an accused person has been convicted of an offence but before sentence the presiding judge becomes incapable of proceeding, some other judge may proceed to sentence as though the accused had been convicted by him. The situation here is not as bad as what is envisaged by s.576. I have been reappointed and should continue hearing my part-heard cases.

In The State v Augustine Lausi (2001) N2091 where a trial remained part-heard at the time of a judge's incapacity by reason of expiry of his term of appointment, Los J. directed that the trial continue before a different judge. Again, the situation in this case is not as bad as that in The State v. Augustine Lausi. Accordingly, I should continue with the hearing of the matter.

I am also mindful of the continuous need to maintain judicial independence. The people, the media, and members of the profession are seemingly tampering with judicial independence. It is becoming common site nowadays for lawyers to publicize opinions on matters pending before the courts and is sub judice. In the legal battle on the Simbu Governor's post, for instance, a legal opinion was published a day or so before the Court handed down its decision. Unfortunately, no one spoke against the publicity in defence of judicial independence and judicial integrity.

I am also mindful of the need for judicial independence in this case. The interests of the State, the complainants, the accused persons, and the administration of justice are loftier than the expiry of my term of appointment and related or any other petty issues. The Bench is a place for mature and independent thinkers and administrators.

Ultimately, I am unable to find any valid grounds to discontinue hearing this matter. I dismiss the application.

Orders accordingly.

Lawyer for the applicant: Public Prosecutor.
Lawyer for the respondents: Public Solicitor.