Arua Maraga Hariki v The State (2007) SC1320

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Cannings J
• Judgment Date: 28 June 2007
• Citation: (2007) SC1320
• Docket Number: SCRA NO 12 0F 2003
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC1320

Full Title: SCRA NO 12 0F 2003; Arua Maraga Hariki v The State (2007) SC1320

Supreme Court: Injia DCJ, Cannings J

Judgment Delivered: 28 June 2007

SC1320

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 12 0F 2003

ARUA MARAGA HARIKI

Appellant

V

THE STATE

Respondent

Waigani: Injia DCJ, Cannings J

2006: 28 November,

2007: 28 June

PRACTICE AND PROCEDURE – criminal appeal – application for leave to amend notice of appeal – proposed addition of new ground of appeal – whether Supreme Court has power to grant leave after settlement of appeal book – test to be applied when determining whether to grant leave.

JUDGES – member of Supreme Court ceasing to be a Judge after hearing of application–whether remaining Judges can deliver judgment – Supreme Court Act, Section 3, continuation of appeal notwithstanding absence of Judge

This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant wanted to add a new ground of appeal. The Public Prosecutor objected and submitted that the applicant would require leave under Section 155(2)(b) of the Constitution. Between the dates of hearing the application and giving of judgment, one member of the bench retired so the remaining Judges had to decide as a preliminary issue whether the Court was duly constituted.

Held:

(1) The objection was made “in the course of an appeal” and Section 3 of the Supreme Court Act allowed the remaining Judges to give judgment.

(2) A notice of appeal can be amended:

(a) prior to the date for settlement of the appeal book – by supplementary notice, without leave;

(b) after that date and before or during the hearing of the appeal – with the leave of the court.

(3) In a criminal appeal the test applied when deciding whether to grant leave is whether there are special circumstances in the particular case, which makes the case an exceptional case that warrants the grant of leave to amend the notice of appeal (Charles Ombusu v The State [1996] PNGLR 335 applied).

(4) In the present case, special circumstances exist making the case exceptional, in that the proposed amendment was raising an arguable point of law; the applicant has had a number of lawyers representing him; the application for leave was made prior to the hearing of the appeal; the applicant was facing the most serious penalty known to the law – death by hanging; the respondent will not be unduly prejudiced by the granting of leave.

Cases cited

The following cases are cited in the judgment:

Avia Aihi v The State [1981] PNGLR 81

Birch v The State [1979] PNGLR 75

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Charles Ombusu v The State [1996] PNGLR 335

Dinge Damane v The State [1991] PNGLR 244

Rolf Schubert v The State [1979] PNGLR 66

The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812

The State v Arua Maraga Hariki (2002) N2331

The State v Arua Maraga Hariki (2002) N2332

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

APPLICATION

This was an application for leave to amend a notice of appeal.

Counsel

D Sakumai, for the applicant

P Kaluwin, for the respondent

28th June, 2007

1. INJIA DCJ AND CANNINGS J: This is a ruling on an application for leave to amend a notice of appeal in a criminal case. The applicant, Arua Maraga Hariki, was convicted by the National Court (Salika J) of two counts of wilful murder and sentenced to death. He has appealed against both convictions and sentence. A few days before his appeal was due to be heard, his lawyer, the Public Solicitor, filed an application to amend the notice of appeal. He wants to add a new ground of appeal. The respondent, the Public Prosecutor, representing the State, objects. The case raises these issues:

1 What are the requirements of the Supreme Court Rules regarding applications to amend notices of appeal?

2 Should this application be granted?

Before addressing those issues there is a peculiar aspect of the hearing of the application that we need to address, plus we need to explain the background of the case.

RETIREMENT OF A MEMBER OF THE BENCH

2. When we heard the objection the court was constituted by three Judges, one of whom – Los J – has since retired. This raises the issue of whether the Court, now consisting of only two Judges, can determine the objection. Or should it be set down for rehearing before three Judges? The general requirement arising from Section 161(2) of the Constitution is:

Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

3. Section 162(2) says:

In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

4. Section 3 of the Supreme Court Act is relevant. It says:

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge—

(a) the hearing of the appeal shall, subject to Subsection (2), continue; and

(b) the judgement shall be given by the remaining Judges; and

(c) the Court shall be deemed to be duly constituted.

(2) Where—

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

(b) in any case, there is only one Judge remaining able to hear the appeal,

the appeal shall be reheard.

5. Schedule 1.12 of the Constitution is also relevant. It says:

(1) Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

(2) Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body. …

6. Section 3 of the Supreme Court Act says that where in the course of an appeal and at any time before the delivery of judgment a Judge hearing the appeal is unable to exercise his functions as a Judge, the judgment shall be given by the remaining Judges, provided that the parties agree to that course of action. In interpreting this provision we must by virtue of Section 158(2) of the Constitution give paramount consideration to the dispensation of justice. We should avoid if possible a multiplicity of hearings and further delay. Schedule 1.12 of the Constitution encourages us to take a practical approach to such issues, so that decisions made by constitutional institutions such as the Supreme Court are made expeditiously.

7. Though we have not heard an appeal, as such, we have heard an application, to amend the notice of appeal, that is incidental to, and an integral and preliminary part of, the appeal. The application was made “in the course of an appeal” and in our view that is sufficient for Section 3 to operate. Neither of the parties to the hearing of the objection has expressed any disagreement with the judgment being given by the remaining Judges. Therefore the Court is duly constituted, we are required to give the judgment and no rehearing is necessary.

THE NATIONAL COURT CASE

8. The Public Prosecutor presented two separate indictments against the applicant, each one charging him with wilful murder. He pleaded not guilty, a trial was conducted and on 23 December 2002 he was convicted (The State v Arua Maraga Hariki (2002) N2331). The victims were two young men from Baruni village, near Port Moresby: Heni Veidiho and Mathew Togiri. The National Court accepted eyewitness evidence and concluded that the applicant killed Heni Veidiho by holding him by the neck, cutting his air supply, in the course of a drinking session, intending to cause his death. The court did not draw a firm conclusion on how Mathew Togiri was killed but applied the rules of circumstantial evidence to conclude that whoever killed Heni Veidiho must have killed Mathew Togiri. These events happened near Baruni in March 2001.

9. The trial judge delivered judgment on sentence on 3 February 2003 (The State v Arua Maraga Hariki (2002) N2332). His Honour passed a sentence of life imprisonment for wilful murder of Heni Veidiho and the death sentence for the wilful murder of Mathew Togiri. His Honour imposed a higher penalty for the second death as there was evidence that Mathew Togiri was asleep at the time Heni Veidiho was killed; thus he saw nothing and there was no need to kill him.

THE APPEAL

10. The applicant, who had been represented by Mr A Amet Jnr of Maladinas Lawyers at his trial, himself filed an appeal shortly after his sentence, on 11 February 2003. That was superseded by a supplementary notice of appeal, filed on the applicant’s behalf by the Public Solicitor a year later, on 6 February 2004. The supplementary notice of appeal contains four grounds. The first three contend that the convictions were unsafe and unsatisfactory. The last one relates to the death sentence:

(a) There was insufficient...