Ben Kairu v The State (2005) SC782

• Jurisdiction: Papua New Guinea
• Judge: Jalina, Kirriwom , Kandakasi, JJ.
• Judgment Date: 27 April 2005
• Citation: (2005) SC782
• Docket Number: SCRA 64 of 2002
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC782

Full Title: SCRA 64 of 2002; Ben Kairu v The State (2005) SC782

Supreme Court: Jalina, Kirriwom , Kandakasi, JJ.

Judgment Delivered: 27 April 2005

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 64 of 2002

Between:

BEN KAIRU

-Appellant-

And:

THE STATE

-Respondent-

KOKOPO: JALINA, KIRRIWOM , KANDAKASI, JJ.

2005: 26th and 27th April

APPEALS – Fresh evidence – Application to adduce – Relevant tests for fresh evidence - Evidence available at time of trial and could have been ascertained with the exercise of reasonable care – Purported fresh evidence expression of medical opinion upon earlier medical opinion -- No explanation provided for failure – Purpose of alleged “fresh evidence” not part of issues before trial judge – Evidence not “fresh evidence” and not relevant on issues at the trial - Application dismissed.

Facts

The Appellant applied for leave to adduce as “fresh evidence” medical opinions based on an earlier medical report by the doctor who conducted a post mortem on the deceased as to the cause of death of the deceased. The appellant came to the alleged “fresh evidence” during a conversation with another doctor well after his trial and conviction. The issue before the trial judge was identification and not necessarily the cause of death.

Held

1 The law in relation to applications for admission of fresh evidence are well settled. An applicant in an application to adduce “fresh evidence” must show that:

(a) The evidence in question was not available at the time of the trial and that it could not with the exercise of reasonable care and attention be ascertained, secured and adduced in evidence before the trial judge; and

(b) The justice of the case warrants an admission of the evidence in question.

James Pari & Anor v. The State [1993] PNGLR 173 and Rawson Construction & Ors v. The State (04/03/05) SC 777 followed.

2 In this case, the applicant did not meet the required tests and the evidence sought to adduce are therefore not “fresh evidence” because:

(a) The evidence was available and or could have been ascertained, secured and adduced before the trial judge with the exercise of reasonable care and attention but the Appellants failed to do that;

(b) Given that the issue for trial was identification with no contest on the cause of the death, the alleged fresh evidence is irrelevant and in any case would not serve the interest of justice to admit the evidence in question because of the need to ensure finality and certainty in litigation;

Papua New Guinea Cases Cited:

Rawson Construction & Ors v. The State (04/03/05) SC 777.

AGC (Pacific) Limited -v- Sir Albert Kipalan and Ors (Unreported judgment delivered on 24/02/00) N1944.

Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (Unreported judgment delivered 09/11/01) N2143.

Counsels:

Mr. P. Aeva for the Applicant/Appellant

Mr. C. Manek and Ms. T. Berrigan for the Respondent/Respondent.

27th April 2005

BY THE COURT: The Appellant in this matter is appealing against a decision of the National Court delivered on 27th June 2002, which found him guilty on one count of murder after a trial. However, before proceeding with his appeal, the Appellant has filed an application for leave to adduced “fresh evidence”. We heard that application yesterday and reserved our decision on it. This is now the decision of the Court.

Background and Relevant Facts

The trial of the Appellant before the National Court was on the issue of identification, in terms of whether the Appellant acted in concert with a brother of his in the murder of a 60 years old man on 3rd February 1998, by effecting several kicks to the deceased using boots. That being the case, all the other elements of the offence, such as, death and the cause of the deceased death were not in issue.

Given the issue for trial, the Appellant through his counsel did not contest the admission into evidence the only available medical evidence, being a medical report by a Dr. Wats, then of the Kaveing General Hospital. That report in relevant parts reported the discovery upon a post mortem on the deceased of a number of both internal and external injuries to the deceased body and a conclusion in these terms:

“The above finding confirm that the deceased was assaulted before he died. He probably died of respiratory difficulty due to the injuries he sustained to his right lungs.”

1 The medical report is reproduced at page 208 of the Appeal Book.

1

Although the author of the medical reported was called as a witness by the prosecution, the defence did not cross-examine him in relation to the cause of the deceased death. Additionally, the defence did not seek further expert medical evidence in view of the apparent inconclusiveness of the report on the cause of the deceased death. There is no explanation for theses failures. However, it is consistent with the fact that, the only issue for trial was one of identification.

A year later in June 2003, the Appellant visited the Kavieng General Hospital as a prisoner patient. There a Dr. Wangnapi treated the Appellant. In the course of it, the doctor asked the Appellant about the outcome of the latter’s case and the Appellant informed the doctor that he was appealing against his conviction. At the same time, the Appellant asked the doctor to do a medical opinion in the form of an affidavit based on Dr. Wat’s medical report. That is what Dr. Wangnapi agreed to do and eventually swore to an affidavit on 19th May 2004.

Doctor Wangnapi’s affidavit in relevant parts read:

“8. From a perusal and review of the said Medical Report I have reached an opinion that if the deceased was normal physiologically he would probably not have died from the kind of injuries he received, especially the injury to the right jaw which was queried, fractured and the right upper anterior aspect of right shoulder muscle.

9. The deceased has some abnormal growth other then the normal lung tissue (pathology) in the left lung. The abnormal growth was like a size of a golf ball, on the lateral aspect of the left lung. There was also 300mls of bloodstain fluid in the left lung cavity, which is usually not normal unless there were some injuries in the left lung.

10. It is clearly stated that there were no obvious injuries whatsoever in the left lung and the left lung tissues in and around it during the Post Mortem examination. In my opinion there must have been a disease already existing in the left lung by taking BIOSPY to exclude or confirm the medical evidence to this particular case.

11. In my opinion, the deceased may have died of respiratory arrest (lung stop functioning) because of limited normal lung tissue. As there were 300mls of bloodstain fluid in both lung cavity and the lesion in the left lung.”

Although not specified, it is clear that subsequently, Mr. Aeava of counsel for the Appellant/Applicant requested a further medical opinion from Dr. Golpak. That doctor provided a medical report based entirely on the primary report by Dr. Wat. In essence, Dr. Golpak concluded that the cause of the death of the deceased was by respiratory difficulty caused by advanced tuberculosis, which the earlier medical report did not rule out by carrying out the necessary tests to eliminate that as a possible cause of the death.

The Appellant did not provided Dr. Wat with a copy of neither of the medical opinions by Dr. Wangnapi and Dr. Golpak. Consequently, the Appellant did not give Dr. Wat the opportunity to reconsider his medical opinion based on his post mortem.

Equipped with the opinions of doctors Wangnapi and Golpak, the Appellant filed some two years after the decision on his verdict and subsequently his sentence, his application for leave to adduced “fresh evidence” in the form of the opinions of doctors Wangnapi and Golpak.

The Relevant Law

The law governing applications for leave to adduce “fresh evidence” is trite. In its most recent judgment in the matter of Rawson Constructions Limited & 238 Ors v. The Independent State of Papua New Guinea & Anor.,

2 (Unreported judgment delivered on 04/03/05) SC777, per Sawong, Kirriwom and Kandakasi. JJ.

2 this Court stated the law in the following terms:

“In ...